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Autonomy and indigenous peoples

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Autonomy and indigenous peoples a study of seven states' policies
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Policastri, Joan Frances
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English
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vi, 206 leaves : ; 29 cm

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Autonomy ( lcsh )
Indigenous peoples ( lcsh )
Autonomy ( fast )
Indigenous peoples ( fast )
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theses ( marcgt )
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Includes bibliographical references.
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Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Political Science [Department].
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Department of Political Science
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by Joan Frances Policastri.

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|University of Colorado Denver
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|Auraria Library
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Full Text
AUTONOMY AND INDIGENOUS PEOPLES:
A STUDY OF SEVEN STATES' POLICIES
by
Joan Frances Policastri
B.A., University of Colorado, 1986
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science
1991
"jf
'trf


h
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This thesis for the Master of Arts
degree by
Joan Frances Policastri
has been approved for the
Department of
Political Science
by
Date
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Policastri,1 iJoan Frances (M.A., Political Science)
' i 1
Autonomy and Indigenous Peoples: A Study of Seven States'
Policies | '
' I ;
Thesis directed by Associate Professor Glenn IJhomas Morris
j ABSTRACT
This |thesis is a study of the policies of seven States' ~
the United 'states, the Soviet Union, the People's Republic of
-i
China, Denmark, Canada, Panama, and Nicaragua and their
.. j:
policies towards indigenous peoples. All seven States represent
that they allow some form of autonomy or self-government for
indigenous peoples, and this assertion is examined from the view
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of general autonomy practice as well as a theoretical ideal
autonomy. I
; i ;
In order to explore the reasons for differing policies, an
l,
examination'is also made of the primary founding political,
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economic, and religious philosophies of the States. In these
philosophies 'can be found the roots of stereotypes concerning
indigenous peoples and some explanation for their treatment by
European colonizers. The contrast between the European point of
view and thdse of indigenous peoples is briefly explored.
It is the view of the author that indigenous peoples have a
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moral right jto self-determination in its broadest sense, but that
under the current State system, some form of autonomy is the
highest aspiration that can currently be realized. Existing
international law recognizes a right to self-determination only
for entitiesjwhich it defines as having been colonized. This


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denies the,! experience of indigenous peoples as colonized peoples
because international law does not recognize internal
colonization. International law, and the accompanying political
philosophies, can change to accommodate the rights and needs of
indigenous peoples.
The practices and policies of each State are explored in
twelve specific areas: legal status within the State; indigenous
, | i
control of local government; land title; legal jurisdiction;
i
language policy; religious rights; health care; natural resource
ownership, use and management; taxation; citizenship;
defense/police; and foreign relations.
This abstract,, accurately represents the content of the
!< !
candidate's thesis. I recommend its publication.
' Signed
I'lenn T. Morris
iv


CONTENTS
I
CHAPTER |
1. INTRODUCTION ..........................................
2. BASIC bpNCEPTS AND TERMINOLOGY ........................
!
Sovereignty ..........................................
Secession ............................................
Independence .........................................
Self-Determination ...................................
i
Autonomy ...... ......................................
rl.
Definitions Used in Indigenous Law and
Politics .............................................
; | .
Autonomous Arrangements ..............................
3. RELIGIOUS, POLITICAL AND ECONOMIC PHILOSOPHIES OF
THE EUROPEAN COLONIZERS ...............................
Religion .............................................
i
Political Theory .....................................
Economic Theories ....................................
4. AMERICAN INDIANS AND THE UNITED STATES ................
, -I ,
5. SELF-DETERMINATION IN THE TWENTIETH CENTURY ...........
Marxisjt-Leninist Theory..............................
The Response of the Western States ...................
Post World War II Developments .......................
6. THE SOVIET UNION AND CHINA ............................
The Soviet Union .....................................
j
The People's Republic of China and Tibet .............
china and Maoist Theory..........................
Tibet......................................... .
7. THE INUIT OF GREENLAND, DENMARK AND THE HOME RULE
ACT ... ...............................................
. 1
. 9
9
12
14
16
20
23
25
28
29
33
38
45
66
67
71
74
80
80
94
95
101
108
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V


109
Negotiations Leading to Home Rule .............
The Home Rule Act .............................
8. THE INUIT AND CANADA ............................
I J
The limit of Nunavut.........................
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9. PANAMA,AND THE KUNA OF SAN BLAS ......
. -! ].
10. THE MISKITO INDIANS AND THE NICARAGUAN STATE
i'h
The YATAMA Treaty of Peace.................... .
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The; Nicaraguan Autonomy Statute ......
11. SUMMARY AND COMPARISON OF THE SEVEN STATES
INDIGENOUS POLICIES ............................
12. CONCLUSION ......................................
113
120
122
140
150
156
161
168
179
APPENDIX
A. Indigenous Peoples and the United States .......
'11
B. Indigenous Peoples in the Soviet Union .................
C. Indigenous Peoples in China/Tibet ..... ................
D. The Inuit of Greenland, Denmark and the Home Rule Act .
E. Canada^Nunavut Agreement ........................ r. .
F. The Kuna, Panama, and the Carta Organica of 1945 . .
G. The Miskito Indians, Nicaragua and the 1988 Autonomy
Statute !................................................
1 '!
H. A Comparison of the Miskito and Nicaraguan Proposals .
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I. General Autonomy Practice .............. ........
J. A Theoretical Full Autonomy ............................
BIBLIOGRAPHY ..... ...........................................
185
187
188
189
190
191
192
193
195
196
197
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CHAPTER 1
: ' INTRODUCTION
Without the effects of conquest, forced annexation,
subjugation, dynastic union, and colonial expansion, the
worldj's peoples would presumably now be arranged into
freely chosen political units.
' I Lee C. Buchheit, Secession: The Legitimacy of Self-
Pet erminat ion
Beginning in October, 1492, the indigenous peoples of the
world have been denied their ability to exercise self-
determination.1 It is a premise of this paper that indigenous
peoples retain this right which cannot be taken from a people; it
can only be I voluntarily surrendered. The majority of indigenous
peoples have'never tendered their surrender and the few who have
I : '
done so were forced to do it through use of coercion, in order to
survive the genocide which was threatened if compliance was not
made. Another premise of this paper is that the extension to
indigenous peoples of the right to self-determination is the only
logical, consistent and moral conclusion to the current
international law usage of the concepts of colonialism and self-
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determination.
Between 1492 and 1991, both international law and the two
,1,1
major political ideologies, liberal, democratic, Judeo-Christian
capitalism and Marxist-Leninist socialism, have evolved to the point
i
where modern States acknowledge a limited right to indigenous self-
government, generally in the form of some type of autonomy. States
' I.'
whose policies were enacted prior to the twentieth century describe
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'While indigenous peoples in some parts of the world were denied
this right before this time, the indigenous peoples involved in the
studies in this paper have all been colonized subsequent to 1492.


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their policies as allowing indigenous peoples within the State's
claimed territories to have self-government or even self-
determination .
Following a historical timeline, this paper will examine the
status of indigenous peoples in seven (7) States; the United States
(US), the Union of Soviet Socialist Republics2 (USSR), the Peoples
Republic of China (PRC), Panama, Greenland, Canada and Nicaragua. An
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introduction to the chapter of each State will briefly discuss the
major founding philosophies (including political, religious and
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economic) of that State as well as the position of international law
regarding indigenous peoples at the time the policies were
implemented.:An examination will then be made of each state's
current indigenous policy in twelve (12) specific areas: legal
status, loca.1. government, land title, legal jurisdiction, language,
I
religion, health care, resources, taxes, citizenship, defense and
police, and' foreign relations. The rights accorded indigenous
peoples in each of these areas will be examined and compared to what
could be considered an ideal autonomy. Finally, an analysis will be
made of the current rights of the indigenous peoples being
discussed.
i |
Why have these seven states been selected? The United States
is important'because it was the first State to elaborate a theory of
State/Indigenous rights3 and has thus played a major role in
2Due to.! the historical nature of the reasoning and analysis in
this paper, ithe 1977 Constitution and its provisions are examined. The
current Soviet Constitution is being rewritten and this, as well as
unforeseeable'developments in the Soviet Union may render some or all
of the specific commentary provided here obsolete shortly, however, the
general theoretical context will not be irrelevant, and may well
provide a framework within which to assess the possibilities for the
rights of indigenous peoples in the Soviet Union or whatever
arrangement succeeds it.
, i'.'
^Robert jA. Williams, Jr., The American Indian in Western Legal
Thought: The Discourses of Concruest (New York, Oxford: Oxford
University Press, 1990), 289.
2


establishing,, indigenous policy around the world. U.S. Supreme Court
decisions from the 1830's have been cited as a reference in other
I /
States legal decisions regarding indigenous peoples4 and the
policies the^U.S. has chosen to enact have been used a models in
other States.1 It has been noted that similar problems tend to result
in similar solutions5 and a study of U.S. policy is very revealing.
An understanding of the reasoning behind U.S. policy is necessary to
explain whal: may on the surface appear to be inconsistencies in law
and policy, 'both in the United States and in other States.
:i
The Soviet Union and China provide examples of changes which
can be introduced through political ideology. Greenland, Panama and
Nicaragua are examined because they reflect both the most
progressive policies toward indigenous peoples and also provide
examples of Show changes in international law and political
ideologies can affect indigenous policies. The development of
indigenous pjolicy in Canada provides a look at how policy can change
l
through time, when under pressure from various factors such as
changes in international law, State pride and indigenous pressure.
In order to provide a framework for the discussion and
analysis, Chapter 2 will examine important concepts and terminology
used in this 'paper. An exploration of these concepts is necessary in
order to answer several questions such as: how indigenous peoples
came to be regarded as they are, both politically and legally; why
this view does not accurately reflect reality; do indigenous peoples
have self-gbv'ernment and are they sovereign peoples?
Sovereignty, self-determination, secession, and autonomy are
ideas which have been employed for centuries. The associated
______________i_:_________
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^Canadajand Australia, for example.
c i;
3Isi Foighel, "A Framework for Local Autonomy: The Greenland
Case," in Models of Autonomy, ed. Yoram Dinstein (London: Transaction
Books, 1981); 31.
! 3
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concepts of,| self-government, self-administration, independence,
Nation, nationhood and nationalism, the State,6 and federation,
have all had a place in the attempt to define what is meant by the
11! i
concept of: self-determination. More recently, the concepts of non-
self-governing territories and associated statehood have been added
as the State':system struggles to accommodate more complex
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arrangements1 between governments.
While indigenous peoples desire, and have a moral right to
self-determination in its broadest sense, at this point in history
., i I .!
and under prevailing interpretations of international law (strictly
speaking, inter-state law)7 some form of autonomy within the larger
State may currently, and for the foreseeable future, be the
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practical, realistic aspiration for indigenous peoples. In this
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context, this paper explores the internal aspects of self-
determination allowed within multinational or polyethnic8 States.
The paper aliso discusses the expectations for external self-
determination, i.e. independence, which indigenous peoples and the
world community must consider.
Why is it important to look at State policies toward
; I :
Indigenous Peoples specifically and why should the rest of world
care? The answers to these questions fall into two basic categories,
moral issues! and self-interest.
i'-'
Under jthe category of enlightened self interest, looking at
i
the condition, of the world today, one sees medical, environmental,
6Bernard Nietschmann, "The Third World War," Cultural Survival
Quarterly ll1,' (No. 3, 1987), 1.
\ J
7Lee C. puchheit, Secession: The Legitimacy of Self-Determination
(New Haven: Yale University Press, 1978), 32.
a I
I would actually prefer the term polynational, thus eliminating
the arguments over ethnic and national with 'multi' and 'trans' as
prefixes. One! cannot help but remember the words of Mr. Brooklyn
Rivera, "Ethnics run restaurants...."
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I.,
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political and social problems, which are frequently characterized as
being in a isolate of crisis. There may be a great deal to learn from
the indigenous peoples who still occupy lands under the most serious
threat fromj'development.' Whether in Brazil, Canada, the United
States, thejsoviet Union, Australia, China, or elsewhere, indigenous
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lands are the targets of corporations and governments eager to
exploit lands and resources which indigenous peoples claim, and
which are currently occupied by those same indigenous peoples.
Indigenous peoples have lived on these lands since time immemorial
and have a more complete understanding of the nature of the
resources, bhe possible benefits and dangers, and the
interrelationship of all factors than the settler States around
them. Indigenous peoples have made medical, scientific and technical
contributions which are rarely credited, but without which the world
!
would be poorer.9 As American Indian societies have been decimated,
the world has declined. For its own sake, if not just from a sense
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of justice., Ithe world must pay attention.
Indigenous social structures developed in ways which are quite
. i.
different from European social development. Some indigenous peoples
of North America developed highly democratic political systems which
served as a primary source and example for the writers of the United
I
States Constitution.10 Western utopian writers have often
described, consciously or unconsciously, many aspects of indigenous
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political and social organization when describing their ideal
9Jack Weatherford, Indian Givers: How the Indians of the Americas
Transformed fehe World (New York: Crown Publishers, Inc., 1988), 19.
10See Bruce Johansen, Forgotten Founders (Boston: The Harvard
Common Press, 1982); and Donald A. Grinde, The Iroquois and the
Founding of'the American Nation (San Francisco: Indian Historical
Press, 1977)!.
5


societies.11! By examining indigenous systems and how European
,l ''
systems of Haw, religion and economics affected them, we may better
i !
understand our own beliefs and society.
Indigenous issues are often neglected or ignored by current
architects of social and economic policy. To the European mind,
indigenous;cultures are things of the past, they are 'historical'
. I
or 'primitive,' and have nothing realistic or valuable to offer the
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contemporary ,world. A reference to the way in which indigenous
cultures funbtion is generally criticized as a desire to return to
an idealizediipast (anathema to those who value "progress" as the
| r
highest goal), or as 'utopian,' and therefore impractical today.
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This attitude affects the ability of indigenous peoples to negotiate
.h
various forms! of autonomy and gain acceptance in world forums
because their, traditional social and economic systems are regarded
I' '
as 'primitive' and unworkable today. Past contributions of
indigenous pebples have generally been neglected, so the possibility
of future contributions is underestimated.
; | !i
More than 95% of the world's States are multinational, or
i
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polynational', with most of the peoples so incorporated not having
i M
. " j
been given any other option.11 12 States which consist of only one
nation within, their borders are rare. Iceland, and North and South
Korea are examples of true nation-states. There are only a handful
of others.
A reason for dealing with indigenous issues that is both moral
i'i'll
and which allows for self-interest is that when looking at the world
today, many of the largest, and all of the longest conflicts which
have taken the greatest toll in human suffering revolve around
11See foij example: Thomas More's Utopia. Henry Adams' Democracy:
An American ;Novel. Ursula LeGuin's The Dispossessed, and Ernest
Callenbach'sl Ecotopia.
12Nietschmann, "The Third World War," 1.
'1 i ;
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6


indigenous peoples.13 Ethiopia, Burma and France are all
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participants |in long-standing conflicts with the indigenous peoples
over whom tliey claim the right to rule. Over 400 million indigenous
. hi
peoples continue to live in colonial or settler bondage, and many of
them are in !various states of resistance to that condition.14 15 In
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order to prevent the escalation of these conflicts and to resolve
their underlying causes, the struggle of indigenous peoples as well
' i i;
as their goals and aspirations, must be studied and understood.
One goal of international law is to provide a framework in
i:'
which world order (stability), peace and harmony, can be maintained.
As demonstrated by the figures above, denial of the right of self-
: 1 .1
determination' is not consistent with that goal. Since World War II,
1 !;
international' law has expanded to include the right of self-
i
determination for colonized peoples, as well as other expanded
'i1 .
protections of human rights. Recognizing the suppression and
oppression of1 indigenous peoples as a form of internal or neo-
1 !
colonialism,; and extending to them the same or similar rights
accorded peoples under currently accepted definitions of
1 ]
colonialism,! i.e. self-determination, the goal of world peace and
harmony would1 be closer to fulfillment.
The most compelling of all reasons for recognition of a right
to self-determination for indigenous peoples is that of justice.
Indigenous peoples, the 'red man' are the only race on earth without
a homeland.1 ^Considering the extent to which the world has been
ready to accept upheaval in the Middle East m order to provide a
homeland fori Jewish people, and with the Soviet Union recognizing
13Ibid. ,l '7, 11.
14Ibid.,! 1-15.
! i!
15Speech' fof Russell Means, 12 October 1991, Denver, Colorado.
Unpublished notes in possession of author.


the right of 'secession, it would be inconsistent and unjust to deny
: j
this same right to indigenous peoples. i
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8


CHAPTER 2
1 |
| '
1 I BASIC CONCEPTS AND TERMINOLOGY
l
; 1
* !''i<
Specific concepts will now be discussed in an attempt at
I '
chronological order. It is important to keep in mind that these
concepts have both legal and political dimensions.1 In fact, making
this separation can be done only with extreme care. Ultimately, it
is a court,1 !i'n the case of indigenous peoples an international body,
which will find this distinction.
| Sovereignty
1 '
The first, and most important concept is that of sovereignty.
What is it? iHow does a State get it? Is a State the proper recipient
of it, and how can it be lost?
I
Simply put, sovereignty means the supreme authority. It is
i. ! ~
synonymous with the terms independence and equality. The modern
legal concept, of sovereignty comes from the sixteenth century and
was an attempt to define, in legal terms, the fact that there
existed a secular central power with lawmaking and law-enforcing
authority within a territory.1 2 3 It provided the moral approbation
and appearance of legal necessity.* Current international law holds
! i
that
1 James ;,jCrawford, The Creation of States in International Law
(Oxford: Clarendon Press, 1979), 88.
I | ,
2 Hans J,. Morgenthau, Politics Among Nations: The Struggle for
Power and Peace (New York: A Borzoi Book published by Alfred A. Knopf,
1948), 247., :,
3Ibid.,243.
i
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9


For a |State to be sovereign...it is sufficient to establish
that the sovereign power is possessed in the State and not
outside of it...."5
Sovereignty 'is also assumed to reflect political reality.6
Sovereignty has two components: internal sovereignty, which
refers to supremacy over all other authorities within that territory
' i
and over the population, and external sovereignty, which refers to
independence;from outside authorities.7
Sovereignty is a complex of rights recognized by rules of
international1 law. Sovereign States are all considered to be equal
in terms of jbasic rights, and each State is to be free from foreign
interference in its domestic matters.8 This aspect of sovereignty
has played a very important role in the current discussion of
j
indigenous rights. States believe that indigenous issues are
1 'i
domestic issues and therefore beyond the reach of international law.
Some characteristics which a sovereign State holds are: 1) in
a given territory, only one sovereign can exist,9 2) sovereignty
does not mean equality of rights and obligations,10 11 3) sovereignty
is not actual independence in political, military, economic or
I
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technical matters; the sovereigns must simply have the legal
H. ,
authority to .exercise the power," 4) dependence on other States
5Michael C. van Walt van Praag, The Status of Tibet: History.
Rights and Prospects in International Law (Boulder, Colo.: Westview
Press, 1987,)',' 94.
' !
6Morgenthau, 250.
7Hedlel1 Bull, The Anarchical Society: A Study of Order in World
Politics (NeWjYork: Columbia University Press, 1977), 8.
8Xbid.,'37.
i ,
9Ibid. i
. I 1
10Morgenthau, 248.
11Ibid. ; '
10


does not eliminate sovereignty,12 and 5) the sovereignty of the
State as the 'law-enforcing agent is identical with sovereignty in
the judicial! field.13
An important characteristic of sovereignty is that it is not
, I
divisible. This point is important to indigenous rights and is
related to .both the idea that only one sovereign can exist in a
given territory and that each State is to be free from foreign
interference.1' If this is true, one cannot surrender part of
sovereignty,!'so concepts such as limited sovereignty and quasi-
sovereign arje: meaningless. Morgenthau explains that the concept of
divided sovereignty is an attempt to reconcile the impossibility of
denying that the central government is sovereign, while it is
psychologically impossible to admit that individual states are no
longer sovereign.14
Another, simple definition of sovereignty is that it is "(T)he
/ 1 I
legitimate locus of power."15 The simplicity of this definition may
help to clarify problems encountered by indigenous peoples when they
must deal with the various delimitations of sovereignty given above.
However, lik'e the first simple definition, this is a political*
definition, hot a legal one.
Today's reality is that all the States studied have engaged in
some kind of
demonstrate.!
divided sovereignty, as the following examples will
So there must either be a flaw in the application of
the concept of sovereignty on this essential point or sovereignty is
12Ibid. ]
i
13Morgeiithau, 245.
uIbid.'y 258.
' i
'^Professor Michael Cummings, interview by author, January, 1990.
Professor Cummings also stated that he believes that the only
legitimate locus is the individual.
i
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11


divisible.1 Could it be that the concept of sovereignty is
| i
inappropriately applied to a State and that it cannot logically
t, j,
reside anywhere except within (the territory of) an individual,
I I '
particularly in a democracy? When theory doesn't fit reality, but is
still in use* the theory requires reexamination. And one can
anticipate trouble.
Another possible explanation is that power in a certain area
II ,
is given up| or shared, while sovereignty remains in one location.
i
The final question on sovereignty is, how is it lost?
* i
According to international law there are two ways in which this can
be done: l)la State can voluntarily give up its rights to another
State, or 2!) the government can lose legitimacy and authority within
its territory. It may survive in name and appearance only, while
> J j
another actually governs.16 Some may argue that both of these apply
i
to indigenous peoples. The following studies will explore that
' \ '
question from both legal and moral viewpoints.
Sovereignty today is only applicable as a right, in the legal
f. -17
sense, to Spates,11 and prospectively to non-self-governing
territories]., For the rest of the peoples or entities involved in
disputes it' remains a principle,10 with no attendant recognition or
obligations] ion the part of a State.
Secession
When discussing the concept of secession, definition is not
the problem.!, It is generally agreed that the goal of secession is
withdrawal from a recognized State. Allen Buchanan says that there
is a theoretical gap in political theory concerning the issue of
16,
'Morgenthau, 249.
17.
Crawford, 88.
18
Ibid:
. I
12


secession; that while there is a right to revolution, civil
i
disobedience and emigration, there is no political theory of a right
to secede..19! While this is completely true for liberal-capitalist
theory, v.I.j iLenin introduced the concept of a right to secede into
Marxist-Leriiinist socialism. This theory was never developed for
practical purposes because its use was intended primarily as
political propaganda not as a serious proposal,20 so in practical
terms, Buchanan's statement is essentially true. However, the theory
; i
has been taken seriously by the Soviet people and appears to be in
the process !pf official recognition by their government
!:
From an indigenous viewpoint, for practical purposes there is
no universally accepted distinction between secession, revolution
and civil disobedience.21 This can cause problems for groups or
peoples who |do not wish to overthrow an existing government, but who
do wish to exercise their sovereignty and right to self-
determination within a State that does not recognize gradations of
: i .
State sovereignty. States may perceive indigenous actions, such as a
recognition |of land rights aB move toward secession. Buchanan makes
that point a distinction between revolution and secession,
"secession, juinlike revolution does not require the overthrow of the
government, jthough this may result."22 States may view a demand for
autonomy as ja step toward eventual secession.
Liberal social contract theorists saw no need for a right to
secede and the contact had no time limits or renewal options. An
19Allen|;Buchanan, Secession: The Morality of Political Divorce
from Ft. Sumter to Lithuania and Quebec. (Boulder, Colo.: Westview
Press, 1991).,; 4.
20See Chapter 5 for a discussion of this issue.
1 i
21Buchan|an, 10.
22Ibid. I
: I
13


ideal political theory requires no right of secession because it is
iir
by definition able to perfectly comply with all the needs of the
i' I1!.
people.23 SojjEar no one political theory has attained this goal and
' '!
perhaps, given the history of humans, this is asking too much. That
! I'ii
being the case, it must be recognized that justice requires
acceptance ofj a broad understanding of concepts such as sovereignty,
self-determination, and colonialism, in order to reach the desired
goal of world peace and harmony.
I' H1
The right to secede has been granted in principle in some
U
Marxist-Leninist socialist States, such as the Soviet Union and
China, however, the State of Nicaragua has not included this right.
In the Soviet Union the attempt of Union Republics to exercise the
right has drawn attention to the fact that no mechanism for such
exercise has ever been established.
. ! 1
The position of the United States on this right was
established|by the civil war. No right to secede in the U.S. system
f1
is recognized.
States jidraw their identity from the territory which they
define as belonging to them. This is also a source of power.
!' I
Secession threatens the territorial integrity of the State, which is
' li i I
something no'^State will voluntarily accept.
:l!'
1 Independence
I
Independence is "the exercise of effective governmental
; ii,
authority independent of an outside power."2*
1 ] !
Independence also has internal and external components.
11 I
Internally it means freedom from outside powers to conduct all the
I i
23IbidJ,': 6.
24
van Halt van Praag, 96.
14
l


legitimate powers of government.25 As for external recognition of
independence,
Certain unequivocal acts do, however, imply recognition (of
independence). Among the most important is the conclusion of a
bilateral treaty, for the treaty-making powers of States is
the highest manifestation of external sovereignty.26 27
Other ways in which recognition of independence can be made
are: formal initiation of diplomatic relations and establishment of
trade missions. "Once recognition is granted, States cannot
challenge in the future what they have already acknowledged.1,27
Two other final points about independence are: external
economic dominance does not effect independence28 and "Illegal acts
cannot in themselves cause the extinction of a state.29
The trend has been away from granting independence and full
i '
statehood for ethnic communities in states and other non-self-
governing territories.30 Indigenous peoples are acutely aware of
. | 1 1
this and while they do not view themselves as ethnic communities,31
international law currently holds no other classification for them.
This may change soon as recognition is achieved through the work of
the U.N. Working Group on Indigenous Populations which is drafting a
resolution on indigenous rights.
25Ibid.;,,, 98.
26Ibid.
27IbidJ.; 98-99.
28Ibid., 97.
29IbidJ\ 100.
30Hursii Hannum and Richard B. Lillich, "The Concept of Autonomy
in International Law," in Models of Autonomy, ed. Yoram Dinstein, (New
Brunswick and London: Transaction Books, 1981), 253-4.
I
31 See note 9, Chapter 1.
15
I
l


j, Self-Determination
The goal and right of indigenous peoples is self-
determination'. Once again there is no precise definition of this
term. It is a collection of concepts. This is also a term which has
both a legal! ^and political context.32 According to Alfredsson,
Self-determination can contain the right of potential
beneficiaries to determine their international status, to live
without foreign interference inside their own boundaries and
to choose their own form of government or internal political
organization, to chose government in a democratic manner, not
to be'oppressed by the majority of a State population and to
pursue their social and cultural development.33
Since 1945!l:he terms self-determination and decolonization have in
practice been used interchangeably.3^
, i
The concept of self-determination has been the subject of
considerable"interest and controversy in the twentieth century, as
'I'M
will be discussed in Chapter 5. It has been called one of the most
important arid dynamic concepts in contemporary international
life.35 Forithe purpose of this section the discussion will be
l
limited to the definitional parameters of the concept.
The discussion begins by dividing the concept into its two
I
1 <1
component parts, asking; who constitutes the self and what is the
. i
nature of the process of determination?
i
32Crawford, 88.
33Gudmun;dur Alfredsson, Greenland, and the Right to External Self-
Determination (Ph.D. Diss., Harvard University, 1982) cited in Glenn
T. Morris in "Toward A Right to Self-Determination for Indigenous
Peoples in International Law and Politics," in The State of Native
America. (Boston: South End Press, forthcoming) note 124, p. 12 of
manuscripts 1!'
34Ibid. 1 i
35Aureiieu Cristescu, The Right to Self-Determination: Historical
and Current I Development on the Basis of United Nations Instruments.
U. N. Document No. E/cn.4/Sub.2/404/Rev.l, 177.
16


According to Buchheit, the self "must be distinct from the
1
other selves inhabiting the globe,and be reasonably distinct
i .
from its neighbors in such characteristics as religion, history,
geography, economics, linguistics and race.36 37
The concept of determination implies a continuing process, but
it does not|demand absolute (or full) autonomy or even western-style
democracy.38 it may include elections, plebiscites, the voluntary
division of a State or free cession of territory to another State if
the inhabitants so desire. These are peaceful forms of
determination. Rebellion, insurrection, revolution, secessions and
movements for colonial liberation are more violent manifestations of
,' ^ TO
determination. It is this last groups of ways in which the 'self*
may chooseto determine it's future that causes the most fear of the
concept.
The position of the United Nations on this issue is very
important as it is a legitimate international forum for indigenous
peoples in which their voice can be heard and in which they can
attempt to find legal space outside the 'domestic' limitation.
, 1 I
The U;N. has made the following limited determinations as to
the nature of the right to self-determination. Self-determination is
a collective right of peoples, and is sometimes viewed as a human
36Lee Cf iBuchheit, Secession: The Legitimacy of Self-Determination
(New Haven: 'Yale University Press, 1978), 9.
37ibid.;; io.
38Ibid.,11.
I
39Ibid. 13.
17


It is not a right of
right40 that I concerns individuals.41
minorities.42
The uJn|. has no specific definition of a people, but the term
is not to be| defined in an ethnic sense.43 It is synonymous with
i i ']
'nations' or, Vstates.' The term 'peoples is a territorial concept
which applies only to non-self-governing territories and assures
. Mi.
that colonial! territories will be maintained. U.N. Resolution
1514 (XV) 14|,|DEC 60 supports the principle, also found in the
concept of 'sovereignty, that the territorial integrity of a State
'iii
will be upheld. It is also recognized that peoples were more
numerous than States and would continue to be so.45
The principle of equal rights and self-determination of
peoples is considered by the U.N. to be the most important of the
principles :of international law concerning friendly relations among
states, and {constitutes the basis for other principles.46 The U.N.
I 1
also feels that lasting world peace will not be achieved if peoples
''I;1
are prevented; from exercising their fundamental rights to freedom,
independence |and self-determination.47 The U.N. will aid all
i
'il
1 {]
40Minority Rights Group, Report #73: Minorities and Human Rights
Law (London:! Expedite Graphics, Ltd.) May 1987, 5.
: I i?
41Cristescu, 119.
42Ibid. i.
43Minor;ity Rights Group Report #73, 5.
!'l \
44Ibid. '
45Ibidi j',
46Cristescu, 117.
I '' {
47Ibid.',; 118.
I. -
18


peoples in ,eliminating all vestiges of colonialism, racism and
i f
foreign occupation.48
. | *
The United Nations does not yet consider indigenous peoples to
be peoples' under their definition because the U.N. limits the
i
meaning of their term by saying that it only applies to formerly
colonized areas.49 Nor are they recognized as nations. They have
-1 .'i
been defined into invisibility, however, the efforts of the U.N.
Working Group on Indigenous Populations to establish policy on
indigenousjrights has increased the visibility of the issues in the
international arena.
It should be readily apparent from the introductory remarks of
"ill
this paper concerning the current confrontations m which indigenous
peoples areIinvolved, that all the statements regarding peoples
! ir ;,
can easily apply to indigenous peoples also. But expanding the
definition of peoples would open the way for indigenous nations to
assert their right to self-determination and this frightens the
|!i
current State system.
How have States responded to demands and needs which fall
outside the parameters they have set? They look for answers which
will still .allow the States to claim that they are following their
, if
own laws and ideologies. Current State practice is to develop some
form of autdriomy for indigenous peoples. This is the solution
provided between the Inuit of Greenland and Denmark (where it is
V'
called Home Rule), the Miskitos and Nicaragua and the Kuna and
Panama. In its more general sense the term applies to all seven
States examined, as none of them can be described as having self-
determinat ion.
I '
48Ibid. /
49See Chapter 5, Post World War II Developments, for details on
this point.: '1 i
19


Autonomy
Autonomy is a kind or category of self-government.50 There is
no generally accepted definition of autonomy in international law5^
and autonomous arrangements have a limited status in the
; 'i c
international' arena.52 Autonomy is a flexible concept which is
being used to respond to complex contemporary world politics53 and
is used by indigenous peoples to try to realize their desire for
direct influence on their own affairs.54 As such it may involve
' ii
special administrative and political arrangements such as local
autonomy or home rule55 or it may be limited to cultural or
i
religious issues.56 It gives those who have it the ability to
affect the ideeision-making process.57
Autonbmy sometimes means non-sovereign,58 however is not an
indication of level or status.59 It describes the degree or extent
of independence allowed the autonomous area.60
In The'Creation of States in International Law. James Crawford
r: !
defines autonomy as follows:
i ,
___________________________
50Hannum; and Lillich, 249.
51Ibid., 215.
52Ibid.y; 216.
I'!
53Ibid 219.
54Isi Foighel, "A Framework for Local Autonomy: The Greenland
Case," in Models of Autonomy, ed. Yoram Dinstein (London: Transaction
Books, 1981)|, 31.
55Ibidd ij
56Hannum and Lillich, 218.
57Ibid. .
I
58Hannumi and Lillich, 249.
59Ibid. :j
60Ibid.
20


Autonomous areas are regions of a State, usually possessing
some 'ethnic or cultural distinctiveness, which have been
granted separate powers of internal administration, to
whatever degree, without being detached from the State of
which |they are a part.... (the agreement) must be in some way
internationally binding upon the central authorities. Given
such guarantees, the local entity may have a certain status,
although since that does not normally involve any foreign
relation capacity, it is necessarily limited. Until a very
advanced stage is reached in the progress towards self-
government, such areas are not states.61
The primary focus of discussions has been the relation of the
concepts ini the context of the State. With the exception of
i
Professor Cummings' definition of sovereignty, most other concepts
are described in terms of the State.
The State is a Western conception, which defines the context
of current;international law.62 Indigenous peoples do not
, | J i
necessarily aspire to be States, and it is an example of the
'. 1
dominance of European thought which forces them to conform to some
definition;be it 'nation', 'peoples', or 'self-determination' in
order to have acknowledged, and be allowed to manifest, the
sovereigntyiwhich they have not relinquished. But this terminology
is the one used by States today and it is not changing soon.
Self-government. Self-government is generally seen as a part
'! | !
or subset of!autonomy. Once again there is no precise definition,
and it is a subject of developing political 'jurisprudence' in the
I ,
I 1
context ofithe United Nations since 1945. One essential element
" I''
of self-government is that there is free and democratic expression
of the wishes of the people concerned.6^
61 Crawford, 211-212.
A? 111 !
Morgenthau credits the concept of national sovereignty with the
decentralization, weakness and ineffectiveness of current international
law. Morgenthau, 24.
:'! !
63Hannum and Lillich, 249. This is an excellent example of the
practice of; combining legal and political considerations.
^Ibid.j, !
]i
21


NotedjAmerican Indian law authority Vine Deloria, Jr., writes:
Self-government implies a recognition by the superior
political power that some measure of local decision-making is
necessary, but that this process must be monitored very
carefully so that its products are compatible with the goals
and policies of the larger political power.65
The restrictions posited by this definition are clear. It implies
the people were previously incapable of making decisions.66
It has been asserted that autonomy which only involves
cultural or1, religious issues is not true self-government, even if
the autonomous government has certain administrative
responsibilities.67 A major question here is the amount of
political or legal control which the autonomous government has over
internal matters. The United States says that American Indian
nations have^self-government. The author believes Chapter 4,
"American Indians and the United States," describes something less.
As can be seen from the discussion so far, terminology is very
i
important when discussing these issues. In many cases concerning
indigenous:issues, the terminology used is without substance,68
either because it is used so broadly as to have no real meaning or
it is used 'to confuse or otherwise redirect the discussion (armed
: i;
indigenous struggles are often referred to as civil wars or internal
rebellions land their leaders are terrorists, rebels, or by some
65VinerDeloria, Jr. with Clifford M. Lytle, The Nations Within
(New York: .Pantheon Books, 1984), 13-14.
I
^Ibidl
67Hannum and Lillich, 252.
I ,
zo ] .
Glenn1 T. Moms, "The International Status of Indigenous Nations
Within the'United States," International Working Group on Indigenous
Affairs Document 62:Critical Issues in Native North America. Dec.
88/Jan. 89, 8.
f
22


t
other inaccurate and disparaging term).69 It is used to hide what
is actually|happening.
.Definitions Used in Indigenous Law and Politics70
'
In order to clarify the place of indigenous struggles in the
context of discussions of who is, or should be, entitled to self-
1 I
determination it is necessary to define more precisely several
important terms, the most important of which so far are the State
and indigenous peoples.
A state is a centralized political system, recognized by other
states'; that uses a civilian and military bureaucracy to
enforce one set of institutions, laws and sometimes language
and religion within its claimed boundaries. This is done
regardless of the presence of nations that may have
preexisting and different laws and institutions. States
commonly claim many nations that may not consent to being
governed and absorbed by an imposed central government in the
hands)of a different people.71
Under international law the State, as an entity, must possess the
.,1 i'
following criteria:
(a) ajpermanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with
other) States.72
i,
Taking into) ^account the loose use of terminology, and its changing
use throughjtime, it will be seen that many indigenous nations (the
i1
term formerly and sometimes currently used for a State) fit this
1 > | j '
criteria and; could be accorded international recognition on this
basis. , \
,1 ,
Indigenous communities, peoples and nations are those which,
having, a historical continuity with pre-invasion and pre-
colon'ial societies that developed on their territories,
consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of
69Nietschmann, "The Third World War," 1.
70As currently used by University of Colorado at Denver's Fourth
World Center for the Study of Indigenous Law and Politics.
71
Ibid.''
72
Article I, 1933 Montevideo Convention, in Crawford, 36.
23


: i ;
This
self
them.' They form at present non-dominant sectors of society and
are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic
identity, as the basis of their continued existence as
people, in accordance with their own cultural patterns,
social jinstitutions, and legal systems.73 74 *
definition clearly fits Buchheits definition of a
I ! '
Another important concept in the 20th century discussion of
self-determination has been the issue of nations. 20th century
proponents 'of this right granted it to nations. Indigenous peoples
are variously described as tribes, clans, bands, savages,
:: i
primitives, ior in other colonial terms which relegate indigenous
peoples to a1lower status than that of a nation. The following
descriptionjof a nation, includes both a definition of who is a
nation and describes the implication of this definition for
f
indigenous peoples.
'V'\
Nations are geographically bounded territories of a common
peoplel A nation is made up of communities of people who see
themselves as "one people" on the basis of common ancestry,
history, society, institutions, ideology, language, territory
and (often) religion. Nation peoples distinguish themselves
and their countries from other adjacent and distant people and
countries. The existence of nations is ancient. Today there
are between 3,000 and 5,000 nations. No directory, atlas or
encyclopedia exists that lists or describes all or even most
of the world's nations and nation peoples. 4
According to Deloria, the concept of nationhood
implies a process of decision-making that is free and
uninhibited within the community, a community in fact that is
almost: |completely insulated from external factors as it
considers its possibilities.7^
^Uniteci Nations, Special Rapporteur on the Problem of
Discrimination Against Indigenous Populations U.N. Doc. No.
E/CN.4/Sub.2/1986/7/Add. 4, paragraph 379.
74Nietschmann, "The Third World War," 1.
^Deloria with Lytle, The Nations Within. 13.
24
i


I !
This does not describe the condition of any indigenous peoples, even
though theyjclearly are nations by the Nietschmann definition.
i
As a subset of the concept of self-determination one must
include theipolitical term 'national' self-determination as
established j in this century during and after World War I. This will
be discussed!in Chapter 5.
! i Autonomous Arrangements
Federation. When discussing the various arrangements which are
possible under autonomy, one concept which is suggested is a kind of
r.
federation between the State and the autonomous area. Again, there
is no precise definition of what is meant by a federation, so three
will be discussed.
;i
A system of government in which power is divided by a written
constitution between a central government and regional or
subdivisional governments. Each level must have some domain in
whichj its policies are dominant and some genuine political or
constitutional guarantee of its authority.76
A composite State made up of equal entities, with a central
government generally having full authority over foreign
affairs.77
i
A form" of government characterized by a constitutional
division of power between national and constituent governments
such as states or provinces, in which has independent
powers.78
A federation may be loose (such as Canada, or the United
States under! the Articles of Confederation) or very tight (such as
the former jsoviet System). All definitions agree that there is a
State (although this is never made explicit) with a central
government jwhich divides its power with other entities of which the
j
;i11
76Steffen W. Schmidt, Mack C. Shelly II, and Barbara Bardes,
American Government and Politics Today. 2nd ed. (New York: West
Publishing,; j [1985), 686.
^Hanrium and Lillich, note 11, 216.
78Lewis'Lipsitz, American Democracy (New York: St. Martin's Press,
1986), 577.j
i.


State is formed. Also not stated is the fact that ultimate authority
remains with,the State.
This, poses some interesting problems in terms of sovereignty.
I /
The explanation suggested here is that only the power is divided,
' 1 f
not the authority.
Associated Statehood. Another way in which autonomy may be
I ,
executed isiin the form of Associated Statehood. In such an
, i ;
arrangement! the autonomous area would
"Mi
have all the powers and prerogatives of sovereign independent
States, except for those powers which they unilaterally choose
to delegate to the principal government (typically foreign
affairs and defense).T9
, !
It implies unlimited control of internal affairs so that the
Associated State can unilaterally change its own constitution and
sever the relationship with the principal entity.79 80
! i '
Self-Administration. A final term I would like to add to the
1 ;l'
discussion 'is the concept of self-administration: permission from a
higher authority to run programs created by the higher authority.
The autonomous 'government' may have consultational rights, but no
1 j
fundamentalj decision-making power or budgetary control. This term
most accurately describes the majority of State efforts at allowing
self-government.
> '
The flexibility and ambiguity of definition in most of the
1 if
terms discussed in this chapter present indigenous peoples with both
the opportunity to exploit the broader definitions and the
possibility of being eliminated under the narrower, more restrictive
i j :!
aspects. It-^also emphasizes the conflicts, misunderstandings, and
> 1 '
double-speak which are possible when dealing with these issues.
79Hannum and Lillich, 252.
80Ibid,
; i
26


The studies of State policies will demonstrate that no
' I
j
indigenous people has yet been allowed to freely determine its own
future without substantial, often highly coercive, outside
influence. What States term 'self-government' reflects the dominant
' i 1
society's values and beliefs more than it does those of the
indigenous peoples. Even under the best of circumstances the most
that has been granted indigenous peoples to date, within established
States, is a limited form of autonomy best described as self-
i
administration, with one possible exception, the Kuna of San Bias,
whose CartajOrganica may approach the definitions of self-
government I
I
I
!
I
I
i
i
i
i
, i
i i
i
i-
i
27


I
; | CHAPTER 3
i
RELIGIOUS, POLITICAL, AND ECONOMIC PHILOSOPHIES
OF THE EUROPEAN COLONIZERS
Whilei the focus of this paper so far has been primarily on
legal issues, the political, religious and economic philosophies of
' T;
the colonizing States have played at least as vital, if not a more
1 r
important, role in determining the treatment of indigenous peoples.
Law is a reflection of the reality of power relationships combined
with the values and standards held by a society. Sometimes law can
be termed ar .leading indicator, a reflection of where the society
wants to go!, for example in the case of civil rights, while at other
i
. i
times it reflects what is in existence and serves to entrench and
: ' j I
justify that point of view. "Law...is what the majority wills it to
' 1 : |r
be."1 1 ! ,
United! States Chief Justice John Marshall's decisions in the
Johnson and| Cherokee cases1 2 are consistent, not only with the
notion of a1| decision made for the "public good,"3 but also with
ideas developed by Enlightenment theory and particularly the works
. j
of John Locke, while it can be argued that American revolutionaries
; j'!
were inconsistent in their application of the general theory of
natural rights, those men never escaped from Locke's belief that
1Dorothy V. Jones, License For Empire: Colonialism by Treaty in
Early America (Chicago: The University of Chicago Press,_1982), xi.
1 i r
i ,
2Johnson v. Macintosh. 21 U.S.(8 Wheat.) 543 (1823); Cherokee
Nation v. Geioraia. 30 U.S. (5 Pet.) I (1831). See Chapter 4, "American
Indians and;the United States" for a discussion of these cases.
: 1 | !
3Robertl A. Williams, Jr., The American Indian in Western Legal
Thought: Th'e Discourses of Conquest. (New York: A Donald Hutter Book,
Henry Holt jand Company, 1990), 231.
!
28


!
Indian peoples were not rational enough to be beneficiaries under
natural lawitheory, nor could indigenous peoples escape the European
religious bias against 'infidels.'
The decisions cited above, as well as all other actions,
supported the capitalist aspirations of the new State, the United
States of America, as well as general State theory. The wealth
represented'by resources was to be developed according to the ideas
of 'progress' and economic advancement advocated by Adam Smith and
John Locke.!
i
Last,jbut integrally important, is the influence of Christian
religion. At!;the time of Columbus' voyage, the Church was the
primary unifying power in Europe and had been a central power
throughout tiie Dark Ages. Civil law had less power and value in this
period of time than religious law. The great debates of the
sixteenth century took place within a religious context by
representatives of the Roman Catholic church.
Religion
The rple of missionaries, and their religion, in the initial
and continuing colonization of indigenous peoples cannot be
understated'. Missionaries accompanied most explorers and in some
cases were themselves the leaders of expeditions. Their influence
has been, and remains, powerful.
i
The political philosophers of Europe, including those of
Thomas Hobbes, John Locke, Adam Smith and Karl Marx, are based on
their shared! religion Christianity.^ The primary sources of right
Sttiilej' some may argue that Marxist-Leninist doctrine is non-
religious, I intend to show that its actions are consistent with the
Christian philosophy. Notwithstanding, Marx was a Jew and not a
Christian an'd his philosophy eschewed Christianity. It did not enhance
or condone it.
Nothing in this chapter should be interpreted as implying that
Christianity is the only religion which oppresses. The author is not
i
> I


I'
and wrong, the Ten Commandments and the teachings of Jesus, as well
!
as the Christian creation story, are in the Holy Bible. For a good
'I',
Christian, .the laws and statements made in this document are above
civil law and doctrine.5 While reevaluations have been made in
i
recent years; concerning the meaning of certain words such as
1 dominion'j and despite the ameliorating chapters concerning Jesus
which are the concluding third of the book, the beliefs expressed in
the Old Testament were dominant in 1492. Exactly what does the Bible
have to say'in areas such as land rights, resource development, and
i 1
how to treat'those with whom one is engaged in a (holy) war?
In Genesis, the first book of the Bible, God gives dominion
I I
over everything that has been created to mankind.0 The Bible thus
]
begins by putting mankind outside and above the rest of nature. This
is in opposition to the beliefs of indigenous peoples, who believe
1,1 7
that 'we are:all related.'
i !
As the''story progresses the chosen people of God are
thrown out of paradise for transgressions against his word. They are
!
eventually, given laws, the Ten Commandments, and told they can
: i
return to their homeland. But other tribes now occupy that land. The
.Mi-
Book of Joshua describes how these followers of God's law reclaimed
i.
their land. 5 7
familiar enough with the history of other religions to make such an
assumption.j However, with the exception of China and the case of Tibet,
Christianity was the dominant colonizing religion.
5Romans:; 5:1, 'Faith is above secular law.'
Genesis 1:28-31.
, i'll,
7Beck, [Peggy V. and Ann L. Walters. The Sacred: Wavs of Knowledge.
Sources of iLife. (Tsaile, Arizona: Navajo Community College Press,
1977), 11-22; and Roger Moody, ed. Indigenous Voice: Visions and
Realities Vol. 1, 3-27.
The aluthor has yet to find a single instance of an indigenous
people fighting a war over religious convictions. Wars of religious
conversion |do not appear to be part of an indigenous world view.
30


Then ,t;liey utterly destroyed all in the city, both men and
womenj.jjjjyoung and old, oxen, sheep, and asses, with the edge of
the siirord.... And they burned the city with fire, and all
within'I1 it; only the silver and gold and the vessels of bronze
and of i!} iron they put into the treasury of the house of the
lord.8
i I '
When Christians take such actions, who bears the
responsibility?
And Joshua said, "Why did you bring trouble on us? The Lord
brings}trouble on you today." And all Israel stoned them with
stones; they burned them with fire..."9
So Joshua defeated the whole land,... and all their kings; he
left,none remaining, but utterly destroyed everything that
breathed, as the Lord God of Israel commanded.1or
;,r. .
This;,is told as history, not allegory. So what can be
!''i
concluded frpm the passages quoted above? First, Jews, and later
i !
. 1 '
Christians;,; !are a 'chosen' people, with special rights and
; I ''
privileges; jt:hat put them above other peoples. And when (their) land
. 15
, I.11
has been taken by non-Christians they can, m good conscience,
j J
,i. : ]
commit incredible slaughter to get it back. And they can do this
because they are acting on behalf of 'God.' There is only one true
..
| i!
faith and only the church and its followers have all the rights and
privileges} ;t:hat go with it.
One pf].the Ten Commandments says, "Thou shalt not kill." In
order to avjpiiid breaking this commandment while annihilating the
enemy, Europeans developed the capacity to dehumanize anyone with
' hi1
whom they were engaged in war, thus enabling violation of the
, I'' 4 .
commandment,to be seen as a virtue. This partially explains why
j; ,[
indigenousrjebellions (or any enemy of Christians) are portrayed in
____________!;______________
-!
8Joshua' 6:21-24. They did spare the harlot who had helped them.
; 'f
9Joshua 7:25.
i if
10Joshua 40:1. 11
11Williams, Chapter 1, 3-54; and Russell Means, "The Same Old
Song," in: J Marxism and Native Americans, ed. Ward Churchill (Boston:
South End Press, n.d.), 22.
31


negative terminology which always characterize non-Christian peoples
' [
as being in!violation of the legitimate order. The violence and
depredation!this allows have been experienced by indigenous peoples
I
all over the'world.
These! Old Testament stories are repeated throughout the New
Testament.12 .The message(s) of Jesus regarding love and peace, for
example the; admonition to "Love your enemies,"13 had, and still
have, limited effect. Such an order did not, and does not, fit
within the ,structure of power relationships established by the Old
'm'
Testament. While the rhetoric of Christianity eventually became the
rhetoric o'fj those in power, it did not change the power
relationships.14
! I
The altitudes exhibited above were codified into practice and
law during the Crusades, a time in which Christian Europeans
attempted tb regain the Holy Land from the non-believing, 'infidel'
Moslems.15 It was at this time that the church developed the
terminology ;which would later be applied to indigenous people, that
of 'savages^'' and 'infidels.' The desired goal of the Crusades? Land
f | I
and wealth.! 'The church developed terminology to support its
supremacy and its right to dominion over the land.
1 p | I
lcSee particularly the Book of Acts, Chapter 7.
13Matthew 5:44.
14 For! discussion of an indigenous point of view on this topic
see, Means,'i p. 24. "You can't judge the real nature of a European
revolutionary doctrine on the basis of the changes it proposes to make
within the European power structure and society. You can only judge it
by the effects it will have on non-European peoples. This is because
every revolution in European history has served to reinforce Europe's
tendencies and abilities to export destruction to other peoples, other
cultures and the environment itself."
Christianity is described by many as revolutionary for its
recognition fof the equality of all before God.
15For a!comprehensive review of this period, see Williams, Chapter
2, 59-118.: |!!
32


Such is the nature of the religion brought to indigenous
peoples and;
to which they were required to adapt and convert.
Sixteenth century Spanish theologians debated the humanity of
Indians. Legal theologian Juan Gines de Sepulveda and others
justified tile lower status and inhumane treatment of Indian peoples
11 i;
based on church dogma and the Aristotilian concept of natural
slaves,
16
wh
ile Fr. Bartoleme de Las Casas promoted and defended
Indian rights and managed to get laws introduced which restricted
Spanish colonial depredations, at least on paper.17
Political Theory
The governmental systems of the European colonizers of the
sixteenth, seventeenth and eighteenth centuries, were all
1 , i,
monarchies, in 1492, monarchs had as much absolute control as any
head of state could have at that time. Their right to rule was
justified as'j being by divine right, consecrated by the Christian
God. The Reformation of Martin Luther challenged the power of the
Catholic Church to determine who God had chosen to rule. It is over
this point of the Church's right to confirm a right to rule that
colonizing policies begin to diverge, Spanish and English
colonization!policies developing along different lines as the
Spanish crown remained loyal to the Roman Catholic Church while the
English rejected the power of the Catholic Church.
The English rejection of the absolute power of the church both
opened the way for and required a discussion which would justify the
change in authority. While Machiavelli can be credited with writing
one of the first definitive tracts to justify secular power, another
early political philosopher to develop a modern theory to replace
16
Conquest of
See Lewis Henke, The Spanish Struggle for Justice in the
17
Ibid.
America. (Philadelphia: n.p., 1949.) passim.
33


the 'divine
right' justification for power, was Thomas Hobbes in his
i'l:
work, Leviathan,18 in 1651.19 Hobbes was the first of what were to
become known as the social contract theorists. Although Leviathan
I' I
supports Christian morals, values and laws, and is filled with
citations from the Bible to support Hobbes' position, it replaces
: I ;'!
the divine right to rule with the absolute right of a representative
authority toljrule based on natural law justice. While Hobbes does
not promote
the concept of representative government, he does
promote rule:by rationality and he develops natural law as a
M'i1
substitute: for common law.
Livingj, in an era of political upheaval, Hobbes viewed the
disorder anj}|. violence which could occur in European society when the
systems of '.flower, monarchy and the church, were called into
question. He1 believed that order and control were necessary in
society, so
government should exist to provide peace and defense.
According tojHobbesian theory, if one has power, that in itself is
proof that'
one deserves it, unless one breaks natural law. This is a
;r
ication and rationalization for Empire building.
good justif
By the' time of the American revolution, the most prominent and
influential of the contract theorists was John Locke. Locke's theory
if -
incorporates! basic Christian beliefs and values, as well as supports
rising capitalist mercantile and industrial economic theories.
In order to explain and justify the (then) current English
political .system, Locke took the concept of natural law, previously
j;;}
developed by!; Thomas Hobbes, and redefined many parts of it.
According tcj, Locke, men are naturally in a state of freedom in which
they are fre'e to dispose of their possessions and persons as they 10
4 0 . , ,j I |
'Thomas Hobbes, Leviathan Parts One and Two, with an
introduction by Herbert W. Schneider, (Originally published 1651; New
York: Macmiilan Publishing Co., 1985)
10 j }
Machiavelli also developed a secular theory of power.
34


think fit, j'yithin the bounds of the law of nature, without asking
leave, or depending upon the will of any other man."* 20
The State of nature has a law of nature to govern it, which
obliges everyone, and reason, which is that law [emphasis
added]!; teaches all mankind, who will be consult it, that
being' all equal and independent, no one ought to harm another
in his,life, health, liberty, or possessions.21
The law of nature is defined as being reason. Rational man is
i
covered by this law. Are all men considered to be rational? No. But
this discussion comes later.
Locke! idevelops theories of both property and value, which are
related. According to the labor theory of property, one owns the
property of one's person (unless one is a slave)22 so the labor of
one's body'Japd work of one's hands belong to oneself.23
For this labour being the unquestionable property of the
laborer, no man but can have a right to what that is once
joined to, at least where there is enough, and as good left in
common;; for others [emphasis added].24 25
And is it robbery to take what was once held in common? No. One
should not suppose that just because it was given in common it
'" I !
should stay that way, otherwise why would God have given man the
1 i! i'i
ability toj jlabor and thus earn title?26 The only limit, other than
that highlighted above, is that one cannot interfere with what
someone else has improved, because that would be an unfair
i
_______i_]_^____
" I .
20Lockej p. 4.
21 Ibid 1, 5.
22Ibidl|, 18.
23Ibidl]i 17.
I- "
24Ibid.:; 18.
25IbidL ,
26IbidL j: 21.


I
benefit.27 "
I'
1 Ji.For 'tis labour indeed that puts the difference of
1 ,1'
value on everything...."28 and that is how one earns title to the
land. The Bible is quoted extensively to justify this doctrine.29
! I'
Other important concepts developed by Locke are that the
i ji
bounds of property lie not in the amount of it, but in the useless
perishing of|;anything in one's possession.30 While this allows for
unequal distribution of goods, men have agreed to disproportional
and unequal; distribution of the earth by agreeing to use gold and
silver, which does not go to waste.31 Although men are by nature
equal, ageior virtue can create a just precedency32 regarding
''[i
| 'i
ownership. Indigenous peoples were not regarded as virtuous by
Christian European moral or social standards and were therefore
susceptible
Locke
not come to
jfco dispossession.
, It
[then addresses the question of Indians, "...he that is
the use of his reason cannot be said to be under this
[natural] law
,,..33
Indians are said to be 1) still in social
patterns of the first ages of Asia and Europe, 2) too few for the
country and 3) outside a money economy.3^ This racist picture was
created to explain why Indians didn't need all the land they had.
These passages eliminate indigenous peoples from consideration under
27Ibid;
28
Ibid;
29
25.
Ibid.; 16-19, Old and New Testaments quoted as justification.
30
Ibid-
28.
31 Ibid., 29-30.
iJ
32IbidJ ,s 31.
33
Ibid.
; 33.
34
Ibid. 63.
36


the natural law of reason, which is a Western concept and was
I
defined by Europeans as equating with themselves.
Lockejused the European title of king' to describe indigenous
leaders and then discounted their 'sovereignty,' saying that Indian
kings were absolute only in war while at home they had only a
I 7E
moderate sovereignty. This section demonstrates a complete lack
of understanding of indigenous social and political structures, yet
it was accepted as fact because it supported the European world
l
view. ; ,
A passage which does not mention Indians specifically, but
which couldi have applied to them in European minds is
i1
And thus captives, taken in a just and lawful war, and such
only,| are subject to a despotical power, which as it arises
not from compact, so neither is it capable of any, but is the
state' of war continued.36
The fiinal sections of Locke which are important here concern
i
: I
his theories on questions of land title. His theories support the
idea that a.n unjust conqueror possesses an unjust title.37 However,
i :
the only appeal is to the law of justice and one needs patience.38
Consent which is forced is not binding,39 and what is obtained by
force, one is obliged to restore.40 Conquest is termed a foreign
usurpation [and usurpation is a kind of domestic conquest with the
35Ibid., 64.
36Ibid.;, 102
37Ibidii; 103
38Ibid., 104
39Ibidi, | ' 110
40Ibidl j 111
37


difference !lj>eing that a usurper can never have right on his side.41 42
^ j /p
If the usurper tries to impose its law, then it is tyranny.
Last,|tut certainly not least, God is the final judge.43 In
this passage' .Locke establishes the rule of the Christian God. And
il
Christians will only know if they have correctly interpreted God's
will when they get to heaven.
In these last passages Locke sets out a policy which
i ,:
indigenous peoples might like to see implemented today, however, one
must remember that indigenous peoples do not come under the auspices
of these policies because they were not considered capable of
rationality}!1 the key to having natural law rights.
! i1
One can begin to see in the theories of John Locke the basis
for both western conceptions regarding indigenous peoples, as well
as the formulation of a policy for dealing with them. Is it possible
that U.S. Chief Justice John Marshall got his idea of 'domestic
dependent nations,' the phrase which has allowed U.S. Indian nations
to be viewed as less than independent,44 from the characterization
above, where],!'foreign usurpation becomes domesticated? Locke also
. !;i !
synthesizes,liberal political and Christian religious attitudes.
Economic Theories
One reason Columbus made his voyage was because Europe could
i' i [,
not provide1! the luxuries found in the Near, Middle and Far East. He
1 1
went in pursuit of spices, silks, gold and souls, not land. Europe
did not have these luxuries because the power of the Moslem empire
blocked the{land routes to the east.
41 Ibid.:, 115.
42Ibid,.' 11,
' <
: 'j j
43Ibid.i, 142.
44See Chapter 4, 48.
-1 f ,
38


Mercantilist economic policies dominated economic life in the
j '
16th-18th centuries. After Columbus discovered' the western
I,l'
hemisphere, |iriuch of its portable wealth was transferred to Europe.
The accumulated wealth eventually financed the Industrial
" i i
Revolution.1
Mercantilist policy was a system in which colonies supplied
i /
raw materials for the benefit of the European State and its
| >
industries. The colonies then purchased finished goods from the
'h'
mother-country. Mercantilists sought to enlarge, not the State as a
whole, but the power of government,* *5 which is understandable under
\ 1''
a monarchy. I The emphasis in such a system is on military power.
' r
This was the prevailing system until the mid-to-late 1700's
when .capitalism emerged. Capitalism's primary focus is on material
wealth. All|associated concepts: competition, production, division
: i |"
of labor, surplus, progress and accumulation of capital, relate to
" I i
this primary goal.
: 1;
In An I inquiry Into the Nature and Causes of the Wealth of
L7
Nations. Adam Smith, the formulator of capitalist theory,
1
developed the political economy portion of his social theory.
Primarily known for his economic theory, Smith was more concerned
with the character formation of individuals and their capacity for
I
' | :>
*5S. Herbert Frankel, Adam Smith's 'Invisible Hand' in a Velvet
Glove (Washington, D.C.: American Enterprise Institute for Public
Policy Research, 1980), 9.
*6Ibid.i
' I
1 ,,
*7Adam Smith, An Inquiry Into the Nature and Causes of the Wealth
of Nations I ed. C. J. Bullock, Ph.D. (New York: P.F. Collier & Son
Corporation/ 1937).
39


i I j fm Q
improving themselves. This was to prove very important for
i ;<
indigenous peoples and how their society was viewed by Europeans.
The Wealth of Nations generally asserts the superiority of
I '
persons engaged in manufacturing or living in urban areas and
working for!wages. 'Progress' and 'improvement' are important
concepts fob Smith, as are the difference between 'barbarism' and
'civilization.'* 49
Smithjbelieved that man is born always to be seeking,
unsatisfied! and unhappy.50 Smith, like Locke, was an
,! i !;
'individualist' and believed that when each individual pursued self-
interest, thle interests of society would be better promoted than if
one actually; intended to promote social good.51 This is what drives
the economic order.52 The church was not immune from this rule by
/! i
self-interest. The church and clergy were ruled by self-interest
because they; needed voluntary contributions for their support.53
The power o|f: the medieval church came from its wealth. When this
wealth was.'lost to monarchs, the precursors of modern States, power
was also lost.
*Frarikel, 7. This is developed in Adam Smith's The Theory of
Moral Sentiments, with an Introduction by E. 6. West (New Rochelle, New
York: Arlington House, 1969).
i i.!1
49Smitli!, The Wealth of Nations. 10, 17.
, -I ,
50GlennjR. Morrow. The Ethical and Economic Theories of Adam Smith
(New York:;r^Augustus M. Kelley, Publishers, 1923), 66.
y.
c<| I |.
'Frankel, 11; and Smith, The Theory of Moral Sentiments. "[The
rich] areie^ by an invisible hand to make nearly the same distribution
of the necessaries of life which would have been made had the earth
been divided into equal proportions among all its inhabitants; and
thus, withpjut intending it, without knowing it, advance the interest
of the society, and afford means to the multiplication of the species,
264-65. ; j
1
52Morrow, 47.
i ,
i';
wMorrow, 69; Smith, The Wealth of Nations. 134-35.
I
40


In capitalist theory, individual self-interest does not
<1 !
receive full'expression in. the interests of the group.5^ If
differences in achievement exist it is because of "habit, custom and
education,", lnot nature.55 It is not difficult to see how these
I '
attitudes boded ill for indigenous cultures in which self-expression
' i,,,
found its highest achievement in the group. One can see the outline
I;
of assimilationist policy in the struggle to 'educate' the Indian
;H-r
and 'help' him understand about the need to labor.
j
Smith saw power as more than just the government power which
Mercantilists recognized. For him,, the point of political economy is
to enable people to supply themselves and produce for the State.
56
Indians already could supply themselves and had no overly burdensome
!' 1 i
government which required support.
Smith
believed that one could not leave to government the
defence of society against its enemies, or it would be returned to a
state of barbarism,57 like the one in which Europeans thought the
:lfj!
Indians lived. What was one reason they felt Indians lived m
barbarism? j
i 1 i
A stable money economy was seen as necessary to prevent the
return of barbarism. Stable money is the foundation of progress and
i | co
a surer defense than government against the threat of barbarism.
Indian peoples did not have a 'stable money system' which the
Europeans could recognize. They had not made this 'progress.'
^Morrow,, 78.
55MorroW, 81; Smith, The Wealth of Nations. 20.
j.'1
56Morrdw, 60.
; =j|:
57Prankel, 12.
58Ibid.j, 12.
' i
41



In order to maximize one's opportunities, an individual's
rights to pursue economic goals included the freedom and the
i'll'l'i
necessity o,f| individuals to pursue their interests at home and
abroad. 9 There is a necessity for capitalist economic policy to
cross all borders and national frontiers.60 Expansionist capitalism
a '|l
does not respect borders. Indigenous borders, because they were not
'.I;'1
conceived in! a way similar to European borders, were easily violated
' 'ill
on the grounds established by Locke, that the Indians didn't need,
i 11 f
and weren't| jusing all that land.
,:!:i1'
Land:is important to Smith because it is the area of the
! J. 11 .
economy which most closely reflects the truth behind the concept of
. E
division of!]labor.61 He felt that Europe had erred in medieval
7! if
times because land was not controlled by individuals.62 Here one
'] i ;!;
can anticipate the allotting of collective lands to individuals.
While europeans and indigenous peoples both value land, it does not
mean that they value it in the same way. Europeans value land for it
:;*|t
productive1 potential. Indigenous peoples value land for what it is.
! i 4
Smith!and Hobbes both exhibit fear of a return to a barbarous
;7|:
state of existence. This fear could not help but have an influence
i i'!
on how Eurppeans viewed, the 'primitive' Indians.
!: j El
Another concept developed by Smith is that of the "Impartial
'il'J
Spectator."j This concept of impartiality is found today in both the
. I 7
, I. i j
workings of; the economic system and the legal system of the United
1 ilE
States. For]!Smith, we fulfill Gods plan through the use of our
co I,
3yFrantel, 9.
60Frankel, 9-10.
j!;
61MorroW, 63.
62Ibidl!
42


reason and feelings as exemplified through the medium of the
"Impartial Spectator."6^
V-
The essentials of a capitalist system are private ownership of
the means of 'production and a competitive market system, driven by
profit, through which wealth and resources are distributed.64 One
i
text defines .capitalism as both an economic system and a political
JTC '
system. 3 Individuals would be judged on the value of their skills
in the marketplace, not on social status, color, sex, or
religion.66 Indigenous peoples without skills of value in a
i i
capitalist market therefore have no value. Critics of capitalism
observe that it proclaims the value of equality, but creates
inequality67! through the unequal distribution of profits. The
evidence of this is clearest in the condition of indigenous peoples.
, i
Capitalism supports individual ownership, as opposed to group
'ownership' iwhich is the way indigenous societies view land.
Indigenous peoples do not have a concept of land ownership
equivalent to that of the Europeans. As Chief Seattle noted in 1854,
it is no more possible to own the land than it is the air. In
I '
pursuit of its goals of progress and development, capitalism
encourages t:Ke exploitation of resources. This is consistent with
Christian dominion, but eventually violates Locke's admonition to
ii'
leave 'as good and as much.'
63Smithl The Theory of Moral Sentiments, xi.
64
Lewis
1985), 136
.Lipsitz, American Democracy (New Yorks St. Martin's Press,
; I,
65Steffen W. Schmidt, Mack C. Shelly II, and Barbara Bardes,
American Government and Politics Today. 2d ed. (New York: West
Publishing Co., 1985), 243.
I j'
66Lipsijtz, 136.
67Ibid.
43


Smith I and Locke's combining of economics, politics and
religion described a mechanistic world, made up of interworking
parts. The challenge for (European) mankind now was to figure out
how the machine works. The world, and mankind, were beginning to be
understandable and controllable. The 18th century Diests, of whom
Benjamin Franklin was one, combined liberal political theory,
Christianity and economics to produce just such a belief system.
V
I *
* i
I
i
44


I
CHAPTER 4
AMERICAN INDIANS AND THE UNITED STATES
The white man made us many promises, but he kept only
one. He promised to. take our land, and he took it.
OglalaIjLakota Leader, Mahpiya Luta (Red Cloud) 1882.
,
Indian11Law in the United States' (U.S.) is the most complex
of the sevenj State/Indigenous relationships to be studied. It
provides some of the best and worst examples of treatment of
indigenous peoples to be found.
The policy of the United States toward the indigenous peoples
living within its borders is not called autonomy per se, which is
primarily a
twentieth century term. The government characterizes the
status of Indian peoples as having self-government, and since 1975
'ii
'll1 y
sometimes uses the term self-determination. This chapter will
K;
. J 1
examine the ^ays in which the legal, political, economic and
religious concepts discussed in the previous three Chapters have
produced U.S;. 'domestic' policy in the field of indigenous rights.
The focus will be primarily on the policies and laws directed at
Indians of the lower 48 states with the twist in policy toward the
I n
native peoples of Alaska introduced in 1971, noted briefly. Because
the U.S. has'no one document to which one can look to see what
^ased on the discussion of a State in Chapter 2, the name United
States of America is misleading. Only the federal government can
technically!1 [be termed a State because the U.S. Constitution holds
ultimate sovereignty. This is an example of Morgenthau's concept of
psychology realism.
2"The Indian Self-Determination and Education Assistance Act of
1975" (25 jlSCA ss. 450a-450n). This Act was a reworking of John
Collier's brjiginal 1934 program and allows the tribe, not the BIA, to
decide if tliey wish to participate in a particular program. Vine
Deloria, Jrj.' with Clifford M. Lytle, The Nations Within. (New Yorks
Pantheon Books, 1984), 23 and 103.
45


policies have been established, this chapter will survey basic
documents of U.S. policy.
The indigenous peoples of the United States are generally
referred tojjby the catch-all term Indians, although there are over
500 different peoples hidden by, or covered under this term. This is
an example of the problem of identification caused for indigenous
I!'
peoples by [State use of inaccurate terminology. However, for
purposes of
simplicity, clarity and consistency the term 'Indian' as
used by the^U.S. government will be used generically here, with
>1
specific nations identified by name as appropriate.
.! I1 i
The government of the United States was and is well aware of
I
the importance of the concept of sovereignty when dealing with
, Mi'
Indian lands,. A major battle of the Continental Congress concerning
the creatidn of the Articles of Confederation came about over the
issue of who would hold sovereign title over western lands, the
states, ori
the State government. But policies for dealing with
Indian nations began before the existence of the U.S.
During the colonial era, Great Britain established diplomatic
relations With many Indian nations for the purpose of trade and
appointed ejfficial representatives to these nations.* Under
international law this acknowledges the sovereignty of Indian
nations. Tile U.S. continued this policy.
Indian peoples of the United States hold a special, almost
unique5 tboji! in their dealings with the United States government;
5Robe^tj A. Williams, The American Indian in Western Legal Thought:
The Discourses of Conquest (New York, Oxford: Oxford University Press,
1990), 293.
^Dorot'ny V. Jones. License For Empire: Colonialism by Treaty in
Early America (Chicago: The University of Chicago Press, 1982), 21-92.
i"
r 1 ,
JFor the purposes of this analysis. While the government of Canada
made treaties with many of the aboriginal peoples who live there, the
focus of ; [this paper is on the Inuit of the Nunavut (Northwest
46


I '
they have treaties which (should) serve as an express recognition of
their rights.1 The policy of treaty-making was established during the
European invasion,6 and the process, and its place within the legal
framework of;,the U.S., was formally acknowledged by the United
States in its Constitution.7 International law theory says that
:' i
treaties are; made between parties of equal standing, and on this
ground as well as according to the U.S. Constitution, these treaties
i i
acknowledge;the existence of Indian nations as separate entities.
The U.S. Supreme Court has defined this as according them a status
; I \
I o
higher than, that of any of the individual states.0 Considering that
the terms nation and State have historically been used
I :j
interchangeably, and adding the recognition afforded by the
I ;i'
establishment of diplomatic relations, the status held by indigenous
nations in the U.S. could arguably hold them to be equal to the U.S.
on this point-
>' I
It isj, important to note that these treaties are legal
documents ln: which the Indian peoples reserved to themselves certain
lands and rights, granting title to other lands in the United States
Territories)P who have no such agreement. The Kuna also have a treaty
with Panama.; The Miskitos and Inuit of Greenland have legal agreements
with a lower! degree of international status as do indigenous peoples
in the Soviet Union and China.
6Felix!'|S. Cohen, The Handbook of Federal Indian Law. (Washington,
D.C., GPO, 1942; reprint, Albuquerque, New Mexico: University of New
Mexico Press, 1986), 46. Spanish theologian and legal scholar
Franciscus |dje Victoria established the legal and theoretical framework
for this policy in 1532.
j; ,j
7 Article I, Section 10 U.S. Constitution "No State shall enter
into any Treaty, Alliance, or Confederation" and Article VI, Section
2 "This Constitution, and the laws of the United States which shall be
made in pursuance thereof; and all the Treaties made, or which shall
be made,, : junder the Authority of the United States, shall be the
Supreme Law/of the Land, and the Judges in every State shall be bound
thereby andj-any Thing in the Constitution or Laws of the States to the
Contrary notwithstanding."
Williams v. Lee. 358 U.S. 217 (1959).
!
;
r f
47


in return for various promises from the United States. While the
United Stat'je.s unilaterally ended its policy of making treaties with
the Indians!, in 1871, this act did not remove any obligations entered
into by the (United States in previous treaties, nor did it deny the
'i! - 9
nationhoodi :of Indian nations.y
The Constitution of the United States addresses the issue of
Vi1
Indian nations twice, first when dealing with the regulation of
'Commerce wjith the Indian Tribes,'10 and then when determining
representation in the House of Representatives.11 Neither of these
: I
diminishes:lithe sovereign status of Indian nations, however, the
I'!
Commerce clause has subsequently been interpreted by the U.S.
; i,,,
Supreme Court as giving Congress plenary authority over all Indian
':!i
issues. The! clause also distinguishes between foreign nations, and
Indian tribes, and states.
The fcj^sic pattern for Federal Indian Law was set in the Trade
''i!;.
and Intercourse Acts which were passed between 1790 and 1834.12 The
first substantive pieces of legislation affecting the Indian peoples
, r i
were the Trade and Intercourse Acts. These dealt with relations
between Indians and non-Indians, but did not mention dealings
between Indians and Indians. The first Act was actually a Non-
; i *
. '' !, I :
intercourse :Act and was meant to protect Indian lands and peoples
from white |depredations and chicanery, but by 1817 the government
was using ;t:he intercourse acts as a pretext to interfere with issues
iili!
of criminal 'justice. Indians were unilaterally made subject to the
same laws jc.s' non-Indians in Indian Country, however, a major
U.Sv !Statutes at Large, 16:566.
U.S.!,Constitution, Article I, Sec. 8, clause 3.
/i'll
Ibid.:; Article I, Section 2, Clause 3.
Felix! s. Cohen, Handbook of Federal Indian Law (Washington,
D.C.: GPO, 1942; reprint, n.p., Five Rings Corporation, 1986), 9-10.
10
11
12
; i
48


exception protected the internal sovereignty of Indian nations,
namely that
i!
Indian v. Indian issues were still held to be within the
realm of each nation.
-;1 P
A Bureau of Indian Affairs (BIA) was created within the War
Department jin 1824. This was a response to the westward expansion of
the UnitediSStlates and a prelude to the era of Indian removal which
iji;
was authorized in 1830 with the Indian Removal Act. In 1849, the
"Ijlll
Bureau of Indian Affairs was transferred to the Department of the
if if
Interior, i ],
The underlying attitudes and motivations of the government are
revealed bylithe governmental departments within which Indian issues
' '! if
have been placed; first the war department and then the Department
of the Interior. The placement of Indian issues in these areas
reflects the j, attitude of the government at these different points in
'}ji
time. Early1 in U.S. history, the government perceived itself to be
ih!'
generally orji potentially at war with the Indians. Later, the
government;jEjelt that it was in possession or control of the Indians,
that Indians'were 'resources' requiring development, not human
beings.14
' i i f In Johnson v. Macintosh13 Chief Justice John Marshall began
;4li
the legal usurpation of indigenous sovereignty, deciding that
"! i I!'
European 'discovery' had in some way "impaired" the Indians title
to the landjj16 The court separated sovereign rights from land
iaU.S;I Statutes at Large, 4:411-12, May 28, 1830.
I !i
*/ ' |:
Reginald Horsman, Race and Manifest Destiny: The Origins of
American Ralcial Analo-Saxonism. (Cambridge. Mass.: Harvard University
Press, 1981)1, passim.
1521 U'is.(8 Wheat.) 543 (1823)
16, ii|l
^inei| (Delona, Jr., and Clifford M. Lytle, American Indians.
American Justice (Austin: University of Texas Press, 1983), 4.
49


rights through the usufruct1^ concept, thereby restricting
rl'1'
indigenous 'sovereignty over the land. This legal fiction was
continued and enhanced in the 1830's, when Marshall handed down a
series of decisions which substantially altered the interpretation
of the status of Indians and Indian treaties. None of the principals
in any of these cases were Indian peoples. Laws which would
fundamentally affect Indian peoples were made without their input or
voice. i
In Cherokee Nation v. Georgia.17 18 Marshall declared Indian
:li; .
nations to,j?te "domestic dependent nations." This concept has become
the operating policy for Congress. The concept of 'dependent' was
, 1 !'
interpreted -in the legal sense, thus requiring a guardian. There is
. i \
no Constitutional basis for the guardianship argument and while
Marshall used the term as part of an analogy, subsequent legislation
formalized!jbhe concept. While the term 'dependent,' if true at all,
, i I i
was applicable in 1832 in only its most limited sense (as defined in
individual jtreaties), subsequent policy and legislation has done
I
much, intentionally and unintentionally, to foster maximum
,,1 ! i
dependency.!This has been so successful that in 1975 the U.S.
Commission! on Civil Rights issued a report which labeled the Navajo
Nation "An American Colony."19
As discussed in Chapter 2, the concept of indigenous issues
being a domeistic concern and not within the scope of international
: |;;
law is ver^rjimportant. The United States has used this terminology
as a way of^avoiding the issue within an international context,
17 I'l'i1
'A legal concept in which aboriginal peoples are deemed to hold
the right'to use and occupy land, but which denies ownership in the
European sense.
1830 ,U.iS. (5 Pet.) I (1831).
19U. siljCommission on Civil Rights. The Navaio Nation: An American
Colony (Washington, D.C.: GPO, September, 1975).
50


holding thatjiany international body's (U.N. or International Court
of Justice)decisions on these internal matters are invalid. It may
be remembered that it was English philosopher John Locke who
introduced ,the concept of domesticity to the discussion of conquest.
Congress has its own dishonorable history of dealing with
Indian treaties, either making substantial, unilateral changes prior
i!"
20
to ratification, or not fulfilling obligations which were made.
:! 1' i
From 1850-1865 the U.S. was preoccupied with issues which
*:;[
would lead!bo and include the U.S. Civil War, but when the war
ended, a new;: enemy was found on the great plains and the era of the
Plains Indian wars began. Major treaties were signed in the 1860's
with a number of Plains Indian nations and the United States
>i|!
suffered its1 only major military defeat on its own soil with 'Red
Cloud's War,||!21 but in 1871 a power struggle between the executive
and legislative branches ended the treaty making period. Some people
wanted to end the process for humanitarian reasons, such as the
appalling conditions produced by the reservation system (the meaning
of which hal'd' been subverted by the U.S.), but whatever the reason,
' ! i '
the result ,was a diminished legal status for Indian nations. Indians
I 'I II
colonized during or after this time lack the weight of treaties in
their arguments for self-determination. This does not mean that they
do not have'jthese rights, merely that no treaty exists to
substantiate1 the claim. This ending of the treaty making process in
I j i *'
no way affects the status of previous treaties.22
'pn ;'! 1 i'
cuSee,:|H,elen Hunt Jackson, A Century of Dishonor, ed. Andrew F.
Rolle (New'York: Harper Torch Books, The University Library, Harper and
Row, Publishers, 1965).
,! ;!
?1 1 "
ClSee; | Dee Brown, Fort Phil Kearnv; An American Saga (Lincoln:
University!;of Nebraska Press, 1971).
''it
22Cohe|iij, Handbook of Federal Indian Law. 33.


1885 saw a major intrusion into Indian life and a major
reduction ofinternal tribal sovereignty and autonomy by the United
ll-!
States government; On March 3, 1885, the U.S. Congress passed the
Major Crimesj J Act .23 This Act gave the U.S. jurisdiction over seven
major crimes24 committed by one Indian against another Indian on
Indian reservations. Prior to this Act the tribal governments could
make and enforce laws which affected their own citizens exclusively
within their' own lands.25 The Act was introduced and passed because
the citizensj of the United States were appalled when Brule Lakota
: i;!
Crow Dog wasi found not to be under the jurisdiction of the federal
j;
courts for his murder of fellow Brule, Spotted Tail, in the case of
,, j j [ -
Ex Parte Crow Poo.26 The First Judicial District Court of Dakota
had sentenced Crow Dog to death, but he challenged the decision on
jurisdictional grounds. In an acknowledgement of tribal sovereignty,
the challenge was upheld by the Supreme Court, and he was freed. The
good citizens of the United States could not let murderers continue
to go free and so the Major Crimes Act imposed the power,
conscience',Jland standards of U.S. 'justice' on the Indian peoples
:;|jl
for the designated crimes. This is an excellent example of how
European religious values and social mores were used to justify the
23
U.S'.
24
{statutes at Large, 23:385.
The primes covered were murder, manslaughter, rape assault with
intent to kill, arson, burglary, and larceny. The list has subsequently
expanded to'J cover 14 felonies.
25
At this point the Indians were not citizens of the United
States. Thel were and are citizens of their own nations.
26
109,
Ui.S. 557, 571-72 (1883),
52


cultural and,physical genocide of Indian peoples. European values
were held ,toj|:be superior to Indian systems of justice.27
In 1887, the State again imposed foreign doctrine on both
Indian lands;jand Indian society with the passage of the General
Allotment Act.28 Using the rationalization of bringing Indians into
I i i!
the modern world, improving their economic outlook, and introducing
concepts such as individualism, competition and acquisitiveness,
Congress passed what some have termed the greatest land-grab in
history. Ostensibly for the benefit of the Indian nations, the law
reduced Indian lands from 138 million acres in 1887 to 48 million
acres in 1938.29 Individual Indians were given land and allotted
, ' >i
Indians were; made citizens of the United States. While restrictions
on alienation of title were part of the Act, there were numerous
ways in which these were violated or circumvented. The result was a
disastrous
disruption of the traditional Indian way of life. No
thought was!given to future generations who were effectively
disinherited. Tribal status was reduced as the value and importance
of natural
governments
resources grew for both the State and indigenous
i
30
The General Allotment Act epitomizes the imposition European
religious {and economic values on Indian peoples. The Biblical values
concerning
land, as well as John Locke's and Adam Smith's views on
27For! etj, continuation of this line of thinking to the present day,
see Oliphant v. Sucruamish Indian Tribe. 435 U.S. 191 (1978) and Duro
v. Reina. .110 S. Ct. 2053 (1990). On October 28, 1991, President Bush
signed into''law legislation which overturned the Supreme Court decision
in Duro,! iilitiereby restoring the jurisdiction of tribal courts over
misdemeanor!Iicrimes committed on tribal land by non-member Indians.
2824 Stat. 388, Act of February 8, 1887.
29Clintpn, Robert N., Nell Jessup Newton, and Monroe E. Price,
American Indian Law: Cases and Materials. 3d ed. (Charlottesville, VA:
The Michie'l {Company, Law Publishers, 1983), 152.
30,
Del'oria with Lytle, The Nations Within. 5.
53


property, yaliue, and work are all expressed in this Act. The
ii'ji
complete and'total disregard in which this Act holds indigenous
.
values concerning land and society are evident.
; ! -f
An example of the power achievable through the combination of
' '! i ill
religion, ;politics and ideology, is the education of Indian peoples
which was given over to the direction of Christian churches by the
U.S. Congress. While such a combination would have been
unconstitutional within the general population, when it came to
' i ;]'
Indians, this concept appears to have been seen as a way to
!'1
accomplish several goals at one time. Indians could gain the benefit
:,iif
of European religion, culture and politics all at once. And the
churches would pay for it.
Spurred by the participation of Indian soldiers in World War I
and the subsequent (1919) right of these veterans to citizenship on
request, on !June 2, 1924, Congress passed the Indian Citizenship
Act,31 which1 [unilaterally made all Indians born in the United
!
States U.S;| ijcitizens. Indian people now held dual citizenship and
had a new set of laws to which they must conform and a new set of
responsibilities which they had not requested. These were European
t:ii
laws and responsibilities.
The Wheeler-Howard Act of 1934 (Indian Reorganization Act or
IRA) was anj attempt by the U.S. government to correct the appalling
'] I
conditions of the Indians as described by the Merriam Report of
1 I ii;
1928. A progressive liberal who had been involved with Indian issues
. i n
for over '2Oj,years, John Collier was appointed to head the Bureau of
Indian Affairs in 1932. He pushed to reverse the destructive policy
of allotment and to reestablish tribal governments and the tribal
land base; While life on reservations improved marginally, Collier's
view of Indian society focused primarily on cultural aspects and
3143"'uijs. 253.
54


while tradii:
governments
ional languages and arts were encouraged, the new tribal
created under the Act functioned primarily in the
economic arena. In these cultural areas, the Act incorporated
improvementsjj,in the treatment of 'minorities' made to political
theory by socialists.32
, ": i i
In order to participate m the 'new order' of the IRA, each
tribe had to write a constitution acceptable to the Secretary of the
Interior, kost of these documents sound more like business
development
or societal
plans for corporate boards33 than they do governmental
development plans. This may not have been entirely
accidental since one function of these new tribal governments was to
affirm the,contracts awarded by the Bureau of Indian Affairs for
resource, mineral and grazing rights on the reservations.34
jTK
From the writing of the Constitution until this time, the only
' ]' i
interest the U.S. government expressed in tribal organization was
the necessity of finding someone to sign treaties and make them
'legal.' Ttie'|separation of church and state, provided for in the
U.S. Constitution, but ignored in Indian eduction, and the
antithesis of many traditional indigenous governments, yet it was
incorporated1 into these new constitutions. If a nation chose to
maintain itsrtraditional government, they were not allowed to
participate
Act.35 Thus
jin the benefits provided by the new Reorganization
r i-
it was not with any degree of free will that Indian
nations were allowed to determine their future.
32
See Chapter 5 for a discussion of this.
33Ward;
Clhurchill and Jim Vander Wall, Agents of Repression: The
FBI's Secret; Wars Against the Black Panther Party and the American
Indian Movement (Boston: South End Press, 1988), 416-17.
34Ibid.
35The
resistance.!
Pueblo peoples of the Southwest are examples of this
55


In 1953, House Concurrent Resolution 108 unilaterally withdrew
:i
federal jurisdiction and benefits from selected Indian peoples. This
policy was known as termination and was justified both because of
improvements; which had been made since the establishment the of
Wheeler-Howard Act and on the moral stance that Indian nations
should now.
be accorded their right to self-government. There was
also some discussion of the costs to the State of fulfilling
obligations;to Indians.
While! usome improvements had occurred under the Indian
Reorganization Act, Indians were still part of the dependency cycle
I |
created by the Federal government. Centuries of oppression and
destruction!!had not been remedied in less than 20 years. But
:'h'i
Congress 'gave' the Indians their 'freedom."
In that same year Public Law 280 gave six 'mandatory' states,
Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin,
jurisdiction "over offenses committed by or against Indians in the
Indian country," and gave the option to any other state that might
z/l ,r
want it. .This was a direct attack on Indian self-government and
sovereignty.'
In 1954 the Menominee Nation was terminated; Indian health
services were transferred to the Department of Health, Education and
Welfare and;,legislation regarding the relocation of reservation
Indians to
terminated
urban areas was enacted. The Klamath Nation was also
!!The disastrous results of this policy, loss of land,
poverty, etc., were recognized and the policy ended.
Title's!: IIVII of the Civil Rights Act of 1968 effect a number
of areas ofilndian life. Title II 'grants' the Indian all the
provisions
36,
of the Bill of Rights when dealing with his own tribal
Frariqis Paul Prucha, ed., Documents of United States Indian
Policy (Lincoln: University of Nebraska Press, 1975), 233.
I
56


government. ;Title III tells Courts of Indian Offenses how they
should operate. If the Indians wish, Title IV allows them to ask the
State to take jurisdiction over criminal offenses and apply State
law to Indilan country. The underlying assumptions of inferiority of
tribal systems and superiority of the American system is clear.
The Nixon administration, in response to demands being made by
the many Indian organizations formed in the 1960's and 1970's,
proposed 'self-determination without termination' and Blue Lake was
returned tojthe people of Taos Pueblo. However, the lack of
j
consistent'commitment to self-determination was evidenced in 1971
with passage: of the Alaska Native Claims Settlement Act (ANCSA).
Oil companies, eager to exploit the resources of Alaska wanted
title to the{. lands settled so that there would be no unnecessary
lawsuits or {delays in development. In an unusual alliance, native
Alaskans, who wanted legally recognized title to their lands (they
' !;] '
have no treaty), and the oil companies, pressed Congress for a
settlement;. ; Seeing the problems created by the reservation system in
the lower 48 States, Congress decided to dispense with the idea of
recognizing lindian/Ifative lands, substituting the creation in fact
of what the'llRA had only indirectly implied: tribal governments as
corporations'. Capitalism was now to define Alaska native
. i
governments;
The
same problems created by Allotment and termination in the
lower 48 states are essentially the same results produced for the
indigenous
peoples in Alaska by ANCSA. Land is alienated, future
generations{are disinherited and the social fabric of the
communities lihas been torn.
37
37,
1985).
Thomas R. Berger, Village Journey (New York: Hill and Wang,
57


One r
esult of federal policies has been to divide Indian
peoples into: what Deloria terms tribal Indians, those who have
traditions
and roots, and ethnic Indians, those whom the government
terms 'progressive,' who want to be assimilated.
38
In February, 1973, attempting to make the promise of self-
'! I!'
determination a reality, members of the American Indian Movement,
I i
with the support of the traditional Lakota peoples, took over the
village of
Wounded Knee, on the Pine Ridge Indian Reservation. The
U.S. commitnjent to self-government and self-determination for
Indians wa.s;[thereby tested and found to be of no more substance than
in earlier.:times. U.S. Marshalls and the FBI were sent to remove the
rebellious' Indians. The standoff lasted 71 days. The repression of
ij
Indian peoples on the reservation by the U.S. government and its
: .T 11' '
I | i|
representatives which followed this expression of self-determination
; I 'l
continued:for years.
i }
Theactivism displayed by Indians drove the Federal government
closer to tribal governments and Indian peoples saw that true self-
determination lay outside regular institutional channels
39
Wounded Knee was the inevitable product of the experiment in
self-government because it represented the first effort to
establish the dignity of the tribe in a manner consonant with
the people's memories of their older way of life.40
Hi!
But: tiiis was a direct challenge to the policies which the
1 | 'i
United States had practiced for 200 years. As a result of this, the
' H.
International Indian Treaty Council was born in 1974, marshalling in
the modern
:era of indigenous peoples within the international arena.
In 1978 the American Indian Religious Freedom Act was passed.
''I1!
This policylj'statement was said to guarantee the Indians the same
i!
38,
Delpria with Lytle, The Nations Within. 242.
39Ibid'.l 226.
40
Ibid.
14.
58


rights as other Americans to practice their own (special) religion.
However, there were no enforcement mechanisms incorporated into the
: i !
Act, so Indians do have the same right to 'believe' whatever they
want as other citizens, but their right to practice it is as
similarly .restricted as that of any non-Christian religion, as
.} i i.
evidenced :by the recent Smith and Lvna decisions. 1
. i'
Indian peoples in the U.S. made economic and social progress
in the 1960's and 1970's, however, this progress was purchased at
the cost of jlndians posing as another American domestic minority to
get a part jof the national welfare legislation. This is not what
' I
self-determination is supposed to require or mean. In fact, by
i
forcing Indians to identify with other minorities in order to secure
benefits, the government was again forcing assimilation onto Indian
peoples and.denying them their separate identity which may, in the
minds of U.jS. officials, diminish their legal standing as indigenous
. i,.
peoples and;it would mean that assimilation was working.
i*!
Vine iDeloria says that self-determination for Indians in the
U.S. initially meant consultation with Indians prior to federal
initiative jand has become the replacement of non-Indians by Indians
in basic policy-making positions.43 The question here is, are these
:ih:
tribal or ethnic Indians?
The 1980's saw the expansion of tribal governments in many
economic areas and a consequent development of experienced leaders
within the
reservation system. Tribal governments have tried to take
advantage of some of the rights they do have such as the right to
41
, : i \\
Lvnariv. Northwest Indian Cemetery Protective Association. 485
U.S. 439 (lj988); Department of Human Resources of Oregon v. Smith. 110
S. Ct. 1595, 108 L. Ed 2d 876.
42
43
Deloria with Lytle, The Nations Within. 216.
I:'
Ibid., 217.
: i ,
59


have gambling on the reservations and the right of tribes to tax
non-Indiansi i(and their own members, if they so desire).
' I l'
;l
Urban jlndians have a limited identity within this system and
they generally fall under the auspices of civil rights legislation,
.1;
not Indian, llaw. This bias (you're only an Indian if you live on a
reservation)' is part of the doctrine of assimilation which has been
I
the founding principle of Indian policy and practice. It fits the
Western stereotype of Indians being wild, primitive and savage. Such
uncivilized people do not live in a city, so living in the city
'! I
means one .isnt an Indian anymore.
The United States has never doubted that assimilation,
I
whether impjosed gently or harshly, is the only answer to the 'Indian
problem' and eliminating Indian culture, language and religion, not
accepting or; promoting them, is the quickest method of achieving
this end. 11
1.
The existence of legitimate treaties between the U.S.
government Sand Indian nations gives American Indian nations the
j. 1,
highest acknowledgement of sovereignty and nationhood that any
indigenous nation can have at this time. As time passed and
international law applications developed, the practice of signing
treaties, witich acknowledges this international character, and which
give indigenous peoples rights and standing, diminished.4*
|' 'i
The American revolution was a war of secession from the
, i- ;
British colonial system. In 1776 American colonists satisfied very
i !
few conditions of distinctiveness such as their ancestors now wish
to impose as a condition for self-determination of indigenous
peoples. American colonists shared language, history, law, and the **
**By 1896, the Province of British Columbia chose not to sign any
treaties, attempting thereby to ignore indigenous peoples and their
rights. Fortunately, Canadian courts have not chosen to allow the
Indians to I be 'disappeared.'
60


Christian religion with England. The separation was justified on the .
grounds of1 geographic isolation, economic incongruity, and most of
all, a sens£; of injustice and oppression.45
. I ;
And Americans weren't being colonized; they were the
colonizers! They lived in a colony that they established. They
I
benefitted from the mercantilist system. The colonies organized
' i
their own government and practiced their own religion- None of this
is true for< iTndians in the U.S. today, or exists only because of the
II
refusal to.be dominated.
The revolution did relatively little to change the basic power
structure in America. Thomas Jefferson, Benjamin Franklin, George
' I, .
:l |
Washington,| and John Adams were all prominent, wealthy leaders in
their respective colonies prior to, during and after the
' revolution!, j
The bjiirdens placed on the colonies could in no way be
described as onerous, particularly when compared to what the
, i;
colonists did to the Indians. The King of England wanted to tax the
colonists, not take away their land, culture, or religion.
I
Taxation without representation is certainly a less
substantive! justification than having one's rights removed by being
declared wards of a State. And Indians have no more say over who is
in charge of! the Bureau of Indian Affairs or Department of the
I
Interior thhn did the colonists over parliament, voting rights
I '
notwithstanding.
1 '
The concepts of wardship and domestic dependency are in direct
conflict with the concepts of self-government and self-
determination. This is at the heart of the conflict between the
if
words of the policy and the actions of the legislation. No amount of
45t
(New Havens
Lee G.i Buchheit, Secession: The Legitimacy of Self-Determination
iYale University Press, 1978), 11,
61


legal rationalization can overcome this basic absurdity in U.S.
Indian policy. Within this context it comes as no surprise that the
highest level of self-determination which Indian nations in the
United States have achieved can best be described as self-
'i
administration. They are allowed to administer programs designed by
others, or^the tribal governments must fit their programs to the
demands of ,JFederal programs in order to acquire funding.
As long as the approval of the Secretary of the Interior is
i f j
necessary fair every action taken by an Indian nation, calling the
1 l-i'ii
nations self-governing or self-determined is a misleading, deceptive
and cruel use of the terms. The fact that Indian peoples live under
approximately 5.OOP*6 more laws than other U.S. citizens indicates
just how much freedom and self-determination Indians actually
possess.
U.S.' policies and laws are prime examples of European
i'
colonizing c^octrine. They also demonstrate the inconsistent, racist
application! I of political, economic and religious theory.
In a
comparison between general autonomy practice today and
what the i[United States calls self-government, beginning with legal
status, one,finds that a treaty and the U.S. Constitution constitute
the positive aspects of special recognition. Public Law 280
represents:
5000 extra
a! special, but negative recognition of Indian status. The
f.ij
Maws under which Indian peoples live also represent
special recognition.
. I : i'
The ^.determination of local government is ultimately controlled
by the State, however, some nations have governments designed by the
"T;11
United States, so-called IRA governments, while other nations have
1 !!
been able to create their own. In order to deal with the United
^Speech of Russell Means, 12 October 1991. Unpublished notes in
possession -of author.
62


States, natipns which do not traditionally recognize a central
government' 'lor single leader have been obliged to abandon this and
adopt some (form which the federal government can recognize.
. I I ,
Legalj jurisdiction and land title are in Indian Country are
two of the 'most complicated issues. In these two areas the
i,;
overlapping of various interests is most evident, and while Indians
'I'1
and Indian jnations hold land title under treaty, by aboriginal
right, and jthrough exchange and purchase, lands may also be held by
non-indiansj J The State believes that it holds ultimate title. Up to
three parties may hold jurisdiction in a legal matter; tribal court,
i i
state court |:or federal court. To say that this can make law
enforcement:' ^complicated is an understatement. The conditions which
must be examined are: where the offence occurred; the type of issue
involved--civil, criminal, or a federal crime; and the identities of
the persons involved. In brief, Indian nations can make some of
their own laws and enforce them under certain conditions. This is
I
; i'
very limited self-government.
The -issue of language is generally not addressed in general
, |11
autonomy practice and the United States was no exception, until 1991
'V;
when Congress passed the Native Languages Act. In the past, the
I I
policy has Jbeen to repress and punish the use of native languages as
" i i L7
part of the assimilation process. Despite the oppression, some
native languages are still spoken. Many nations are attempting to
i!
teach their ,native language to school age children, however, in most
cases education is still primarily in English.
I I1
The issue of religion is seen as coming under Constitutional
,|:
law. The First Amendment to the Constitution has been interpreted to
allow the freedom to believe whatever one chooses, however, the
^7U.S,. | j Civil Rights Commission, The Nava-io Nation: An American
Colony. 61,j. i,
63


I
court has not seen fit to protect religious practices which fall
outside thejjnorms of Christianity. In a decision between religious
rights and'practices, and resource or recreational use issues, the
latter is seen as having at least equal importance. And since the
I
question then is which will effect more people, in the decision, as
i .
can be expected under U.S. democratic practices, the majority
European view dominates.48
Health care is provided by the Indian Health Service. This
I
government program is traditional Western medicine. Procedures such
as sterilization have been practiced on Indian women without their
knowledge or consent. Traditional medicine has generally been
!
perceived as primitive and/or superstitious tinkering, which is
i;
ineffective^ The U.S. Civil Rights Commission called health care on
the Navajo Reservation "inadequate and unsafe."49
Resource control and development is complex. Tribes generally
have advisory power, and in some cases can negotiate contracts.
contracts.58
Indian nations may assess and collect taxes, but generally try
l
to avoid this system because the nations are poor. Income from
! I
tribal land is tax exempt, however, any other earned income is taxed
[ *' ! c.
under state, and Federal guidelines.31
Indian nations have the right to recognize as members, anyone
they wish,i however, the federal government will only recognize as
48See for example, Badoni v. Hiacrinson. 452 U.S. 954 (1981).
, !;
49U. S. j Civil Rights Commission, The Navajo Nation: An American
Colony. 107j, 128.
50Ibid:', 120; 25 U.S.C. sec. 2 (1970).
51Clinion, American Indian Law. 457-8; see also Indian Tribal
Government Tax Act of 1982, P.L. 97-473.
64


Indians tho'se persons who are registered on government rolls. This
ii I '
leaves ultimate recognition with the State.
1 i
In oridter to enforce the laws in which Indian nations hold
'! I '1
: i *
jurisdiction^ there are tribal police forces. The power of these
; i |
officers is, I'limited only by the jurisdictional considerations.
I '!
, i
Because they! are D.S. citizens, American Indian males over the age
; !",
of 18 are subject to military service, if that is required.
! i j'
The United States does not recognize Indian nations has having
* i' 1 i
any official participation in foreign relations.
i :
li
, -I
l
, I
! 'I
' !'
' I
i '1
'< I
1 J-
I I
I
65


I
I
:n
I , CHAPTER 5
i SELF-DETERMINATION IN THE TWENTIETH CENTURY
The twentieth century has, in many ways, been shaped by the
concept of self-determination. Liberal, democratic, capitalist
governments! espouse self-determination and Marxist-Leninist
r
I
socialist governments have included the concepts of national self-
determination and autonomy in many of their constitutions.
' i
This Irientury introduced the first major innovation in western
political, economic and religious thought since the eighteenth
century. Considered revolutionary within the confines of western
thought, Marxist and Leninist theories are the product of
Enlightenment theory. The values expressed were basically the same
as those of l^bhe eighteenth century and while in the 'new' theories,
the real condition of indigenous peoples would not change
substantially, the potential for change in theoretical status and
the context ;of the discussion, which still ignored indigenous
peoples,1 shifted with the introduction of the concept of self-
determination on the world stage.
The political and economic theories of Marxist-Leninist
I. i '
socialism, jwhich had no religious component, used the concept of
self-determination to attract oppressed peoples to its cause. A
response from liberal democratic Christian capitalists was required
, 1.11
and reached its most eloquent expression in Woodrow Wilson's
Fourteen Points, and four supplements, in 1918.
' !-
indigenous peoples are classified with oppressed minorities or
nationalities in Marxist-Leninist theory. They have no special standing
outside this general recognition.
66


benevolence
:'-l
! Marxist-Leninist Theory
By the middle 1800's Karl Marx and Frederic Engels recognized
the potential of capitalism to harm the majority of humans who
'I
worked in its factories, and as a consequence, the whole society.
:h
Because Adam Smith's moral argument concerning the necessity of
could not be structured into the economic, political or
judicial systems, the 'invisible hand' had worked to supply vast
material wealth to a few individuals while the majority of people
led alienated lives which fit Hobbes' description of 'nasty, brutish
and short.I The potential for problems which Smith's theories of
political economy suggested had arrived.
Marx began his work by reinterpreting history. Using the
materialistjjformulation of Smith, Marx saw the advancement of
mankind asia history of material progress. Economics was seen as the
' li:
primary motivation for human development. This economic
interpretation diminished the importance of psychological, cultural
and historical factors which all play a part in the identity of a
people.2 3 Marx considered nations to be a phase of economic
development
originating with the feudal period of European
history. In.jMarx's conception of human history, people would lose
! I
I !
their identification with their ethnic heritage and nation when they
ili1
progressed: far enough to recognize that their true self-interest (a
j :f
Smithian concept) lay with their class, the proletariat. Contrary to
Liberal social contract theory, Marx and Lenin believed that people
formed nations from economic necessity, not for social reasons.4
K
2 '| '
^Walker j jconnor, The National Question in Marxist-Leninist Theory
and Strategy (Princeton. N.J.: Princeton University Press, 1984), 8.
3Ibidf,! 7.
^Robert Conquest, The Nation Killers: The Soviet Deportation of
Nationalities (New York: The Macmillan Co., Inc., 1970), 112.
I
67


Denying theancient origin of nations, they were seen as temporary,
in the historical sense, and would fade along with the demise of
capitalism.1Marxist-Leninist theory accommodates the nationalist
phase of development by acknowledging the superficial components of
national culture language, arts, dress and religion. "Permit it [a
national minority] to use its native language and the discontent
will pass of itself."5
The social upheavals in 1848 Europe caused Marx and Engels to
appreciate the strength of national feelings. Their response was to
use this phenomenon, which they could not ignore, as a strategic
consideration in the attempt to attract adherents to the new cause
of revolution and "Self-determination of nations" became a slogan
for them.6 There is a basic conflict in appealing to national
j
aspirations when your primary philosophy is internationalist, as was
Marx's. This contradiction can be explained as an attempt to align
theory and reality, however, it is best explained by the utilitarian
nature of the concept of 'self-determination of nations' for Marx
and Lenin. i
Engels attempted to make a distinction between 'nations,'
which were large, historically defined groups of people, like
Italians, Poles and Germans, while nationalities were 'relics' of
peoples, small, leftover groups.7 While class was supposed to take
precedence over ethnicity, Engels demonstrated classic racist
stereotyping of nationalities he recognized.8 It is difficult to
imagine that he conceived of indigenous peoples in any higher terms
11'
5Joseph Stalin, quoted in Robert Conquest, The Nation Killers.
120.
6Connor, 11.
7Ibid.,12.
8Ibid., 15.
68


in the 1880j's. In what is definitely a mixed compliment, he referred
to AmericanjIndian societies as 'primitive communism.'^ For Marx
j,
and Engels;jclass was the primary definer of consciousness and
indigenous peoples had not yet reached this level. Indians were
i
relics.
Self-rdetermination became what Connor describes as "strategic
, in i , ,
marxism, meaning
formal, support for the rights to national self-determination
in the'|abstract, coupled with very selective support for
national movements in the realm of action.11
j
Marx and Engels supported some nationalist movements,
such as the Poles and Hungarians, while rejecting others, such as
i *
the Czechs; and Southern Slavs, as reactionary.* 10 12 * For both Marx and
Lenin, the use of self-determination as a tool was more important
than consistency of ideology.
13
When faced with the power of nationalism during World War I,
i i
Lenin explained that States had blunted the consciousness of workers
by exporting:the exploitation of capitalism to their colonies.
14
For Lenin, appeal to the colonies became the tool with which to
break the pojwer of capitalist States,15 and to maintain control of
the revolution. Using the misapplied terminology of a right to
national self-determination for colonies (misapplied because
colonies rarely consisted of just one nation), Lenin added the
I
Frederick Engels, The Origin of the Family. Private Property and
the State /New York: International Publishers, 1972).
10Connor, 19.
11
Ibid., 20.
1 9 I > I
^Conquest, The Nation Killers. 115.
13,
I.
Connor, 7.
14
Ibid.1/ 32.
15Ibid.
69


concept of the right of political secession.16 17 18 This addition
,l
potentiallylgave political power to colonies, which created concern
in the capitalist States which held colonies. This concept also
helped Lenin ' maintain the territorial integrity of the old Czarist
Empire. !:!
However, like Marx, who did not really believe in nationalism,
' 'Mi
Lenin did not really believe in the right to secession. He saw it as
' i!
a strategic,tool. "...the best way to avoid or to dissipate a grass-
' i
roots demand' for independence was to proffer that independence.1,17
i |
As events in the Soviet Onion would reveal, Lenin had no intention
I [;
of actuallyjallowing secession. It was a right in theory, which
would not be;|allowed to be exercised as promised. This is an example
of words without substance.
By 1918 the political and psychological power of the concept
of self-determination of nations, with a right to secession, was
considerable1.' World War I was begun, in part, by nationalist forces
i
in eastern ^Europe and the majority of European States held colonies
in Asia and/or Africa10 which no one was anxious to give up. Also
at stake was 'the fate of former German colonies.
i'. i
Stalin's early writing on the national question reflect
11 j '
Lenin's views. Stalin wrote that self-determination was being
misinterpreted to mean autonomy, which was too harrow a
16Ibid.;:.,33.
17Ibid. \ ;'35.
18For example, Italy claimed rights in Ethiopia, England and
France in Palestine. There are currently indigenous wars of liberation
being fought; ;iin these areas. Indigenous struggles also continue in the
former German colonies of the South Pacific.
. I '!.
| I
70



definition. |9 He also promoted a single world economic order'
20
whose goal'was internationalism.21
When sialin came to power in the late 1920's, he brought a
' I ''
change in the perception of the national question problem. He
believed that relations between nations were characterized by force,
not education or understanding,22 and he put the Russian nation in
1 ^ p?
a privileged position. This pattern of dominance by the majority
peoples of a Estate was to be followed by Marxist-Leninist socialist
revolutionaries, as Nicaragua provides a good example.
: | i The Response of the Western States
To counteract the legitimate aspirations of colonized peoples
which were unleashed by Lenin's pronouncements, western capitalist
States offered their own version of a right to self-determination,
continuing a philosophical discussion begun in the nineteenth
century. The concept found rhetorical support in several States,
j;
including France and Great Britain, but is usually associated with
U.S. President Woodrow Wilson and his January and February, 1918,
Fourteen Points and four supplementary points speeches.
In the January speech, Wilson made two points related to
indigenous peoples. Point number three required the removal of all
barriers to
organizatioh
free trade for members of his new membership
.' This is consistent with Adam Smith's political economy
19Iosif
1905-52. ed;
Stalin, The Essential Stalin; Major Theoretical Writings,
and with an Introduction by Bruce Franklin (Garden City,
New York: Anchor Books, Doubleday & Company, Inc., 1972), 146.
20
Ibid.,1 152.
21
Ibid., ;154.
22Helene Carrere d'Encausse, "Determinants and Parameters of
Soviet Nationality Policy," in Soviet National Policies and Practices,
ed. Jeremey.Ri Azrael (New York: Praeger Publishers, Praeger Special
Studies, 1978), 47.
23
jf ,
Ibid., 48.
71 .
I


theory and
could infringe on the rights of indigenous nations. Point
number five
requires,
A free; open-minded, and absolutely impartial adjustment of
all colonial claims, based upon a strict observance of the
principle that in determining all such questions of
sovereignty the interests of the populations concerned must
have.equal weight with the equitable claims of the government
whosejtitle is to be determined.24
A question one might pose is why should the interests of the
' I 1
populations!be equal to the claims of the government?
In February, Wilson added four more points, three of
which concerned self-determination.
16. That peoples and provinces are not to be bartered about
from sovereign to sovereign as if they were mere chattels and
pawnsjin a game, even the great game, now forever discredited,
of the balance of power, but that
17. Every territorial settlement involved in this war must be
made in the interest and for the benefit of the populations
concerned, and not as a part of any mere adjustment or
compromise of claims amongst rival states, and
18. That all well-defined national aspirations shall be
accorded the utmost satisfaction that can be accorded them
without] introducing new or perpetuating old elements of
discord and antagonism that would be likely in time to break
the peace of Europe and consequently of the world.25
That Wilson1 jmeant no disruption of the territories of existing
J i
States is explained in the notes which follow each point. Self-
determination would be limited to recognized colonies.26
I
For practical purposes, self-determination at this time was
"understood ]as the adjustment of frontiers by plebiscite according
1 I ?7
to ethnic preferences,and by 1919, virtually all European
24Thomas ;A. Bailey, Woodrow Wilson and the Lost Peace (New York:
The Macmillan Co., Inc. 1944, Chicago: Quadrangle Paperback by
Quadrangle Bjooks, Inc., 1963), 333.
, 1 ,
25ArthUr Walworth, America's Moment: 1918. American Diplomacy at
the End of World War I (New York: W.W. Norton & Co., Inc., 1977), 283.
26Ibid.,| 1275-83.
I
27 :1-:
c,Paul jrbhnson, Modern Times: The World from the Twenties to the
Eighties (New York: Harper and Row, Publishers, 1983), 20.
I
I
72


intellectuals subscribed to the proposition that the right to
national self-determination was a fundamental moral principle.28
i :i
This definition was to lead to numerous problems of implementation
I '
and to the:concerns about the concept.
While Wilson sincerely believed in the right as he formulated
it, possibly;because the United States did not see itself as having
1
anything to[lose under the formulation, the world community did not
!' '
choose to implement the ideas as he stated them. Realpolitik was
chosen over]idealism. European powers said that Wilson's
'I !
formulations were too vague, and they saw the hypocrisy,
The Anglo-Saxon is gifted with a limitless capacity for
excluding his own practical requirements from the application
of the idealistic theories which he seeks to impose on others.
Not sb!'the Latin....They observed that the doctrine of self-
determination had not been extended either to Red Indians or
even to the Southern States.29 30
Many irestern statesmen believed, and still believe, that
taking the .concept of self-determination to its logical conclusion
would pose an 'unmanageable threat' to intra-State harmony and be
i To
adverse to international stability." It would force them to break
i !'
up their empires and States. In their view, this result would defeat
the goal of
self-determination as the promotion of increased peace
and stability. Considering the violence involving indigenous peoples
today, this
sounds rather self-serving and hypocritical.
The idea of applying the concept of self-determination also
produced fear on a number of levels: internally, States feared
28Ibid. 37.
!
29Henry|Nicolson, Peacemaking. (London: n.p., rev. ed.), 1948, 95.
Quoted in Arjthur Walworth, America's Moment: 1918, American Diplomacy
at the End dfi World War I (New York: W.W. Norton & Co., Inc., 1977),
272.
30Lee C'.j Buchheit, Secession: The Legitimacy of Self-Determination
(New Haven: Yale University Press, 1978), 19.
73


disruption
and the possibility of hostile new neighbors
31
Externally jthere was the fear of Balkanization; the possibility of
indefinite jd'ivisibility,31 32 which in reality was unlikely. There was
fear of the; effect on democratic systems, in which majority will is
the determining factor,33 but this avoids the question of minority
rights. Another fear was the creation of 'infirm' states (dependent
politically^, militarily and/or economically on other states), and
'trapped minorities' (minorities within the new state),34 however,
since these
fear of the
already existed it is a weak argument. Finally there was
creation of 'stranded' majorities, where minorities
would secede, taking all the marketable/necessary resources with
them.35 Whatj it would appear these States fear most is finding
themselves in a position similar to that in which they have placed
indigenous peoples, e,g; Russia today.
i
Unfortunately for indigenous peoples, while incremental
progress has been made through use of different forms of autonomy,
1111
when the subject of a right to self-determination is raised, these
are still the issues which are brought up for discussion.
Post World War II Developments
While theoretical arguments continued between the two world
wars, actual implementation made limited progress. After World War
II, international consent and the United Nations, consciously or
unconsciously,, followed Lenin's and Wilson's formulation and focused
31 Ibid, j, 27.
32Ibid.:!
I
' !
33Ibid. j 28.
34Ibid.J 29.
I '
35Ibid.J 30.
74


the discussion of self-determination around the issue of
I ;
decolonization.
The concept of national self-determination had been used by
Hitler in his drive for power. This, combined with the use of the
concept by j'communists' and the inability to implement minority
' I :
treaties alter World War I, left the world with a poor and
discredited
opinion of the concept of national self-determination
and international discussion sought a safer point of discussion,
, i
finally focusing on the issue of decolonization. With this focus,
problems posed by a general right to self-determination were
avoided, at[least for the time.
1 ,
The "salt water" or "blue water" theory, and "Belgian"
theories of j colonization were proposed in order to determine which
peoples were entitled to freedom from colonial rule. Under the "salt
water" theory of decolonization, "colonies must be separated from
i |
the colonial' power by a substantial body of water, preferably an
ocean."36 The "Belgian Thesis" held that all colonized peoples,
, I
even those found within colonizing States, so-called enclaves,
should be allowed self-determination.
37
The general acceptance of the "salt water theory excluded the
: I '
modern concepts of neo-and internal colonialism. In this most recent
phase of the struggle for self-determination, no one has wanted to
! tq
' set a dangerous precedent' JO by acknowledging the right of any
other entities (peoples, nations, etc.) to a separate recognition
ii '
within the current State system.
36Glenn T. Morris, "Towards a Right to Self-Determination for
Indigenous Peoples in International Law and Politics," in The State of
Native America (Boston: South End Press, forthcoming), 23.
j
37Ibid., j |
38Buchheit,
14.
75


I
Because colonialism is now widely regarded an illegitimate
exercise of State authority,* 39 the way in which colonialism is
defined is very important. Traditional colonialism argues that
robbing a people of their independence is beneficial, but this is no
longer accepted.40 Now it must be intellectually disguised.41
- :b;
Colonialism is predatory and parasitic in nature. It drains
not only the wealth it seeks, but sucks the life blood from
host peoples. With "progress" it extracts increasingly with
less:brutality, by detached technological means.42
That this description fits the condition of indigenous peoples is
stated clearly by Metis Association of Saskatchewan leader Jim
Sinclairs j
These| administrators are essentially parasites to our people -
they are making a living off us...the last thing they want is
for us |lto be given the money to run our own affairs.43
And Lee Buchheit summarizes the situation of indigenous
i i'
peoples in international law and colonialism,
One searches in vain for any principled justification of why a
colonial people has a moral and legal right to cast off
domination, but a manifestly distinguishable minority, which
happens to find itself, pursuant to a paragraph in some
medieval territorial settlement or through fiat of the
cartographers, annexed to an independent State must forever
remainiwithout the scope of the principle of self-
det ermi! nat ion.44
j :
Another, concept which has been added to the discussion of
self-determination in the twentieth century is that of non-self-
governing territories. This concept grew out of the Mandate system
I
39Ibid.; 13.
I ;
40Robert,Davis and Mark Zannis, The Genocide Machine in Canada:
The Pacification of the North. (Montreal: Black Rose Books, Ltd.,
1973), 29. 1
41 Ibid. 1 '
42Davisjand Zannis, 58.
43Ibid. |
44Buchheit, 17.
76


in which former colonies of losing parties were given over to the
care of winning participants. Once again, the identification of who
falls into, |this area is not clear, however, colonies which are not
considered; Ls being ready for self-government, being politically,
economically', socially, and educationally underdeveloped relative to
the coloniz
ing power, may fit into this category.
The U
45
.N. Charter provides for the recognition and observance
of individual human rights by all its members. The 1948 Universal
Declarationj ;of Human Rights, The Covenant on Civil and Political
Rights (197js) and the Covenant on Economic, Social and Cultural
Rights (197^) reaffirmed these rights and presented them in greater
detail. The
Covenant on Civil and Political Rights was developed by
liberal democratic capitalist States and the Covenant on Economic,
Social and Cultural Rights was developed by Marxist-Leninist
socialist States. Neither document distinguishes indigenous peoples
from other !minorities, while each supports the European values on
which its own philosophy is based. These documents are a
continuation of the values and priorities established by Locke,
;; {1
Smith, Marx and Lenin. While affording some protection to indigenous
peoples, they do so at the expense of denying them their sovereign
identity. | ,
j-i
Otheir documents which have provided some protection, if not
. i
positive rights, to indigenous peoples include the International
,!. I
Labor Organization's Convention on the Abolition of Forced Labor
(1957) and the International Convention on the Prevention and
, | f
Punishment of the Crime of Genocide (1948).
: I :
The most useful legal instruments which indigenous peoples can
have are the treaties made between colonial governments and
indigenous nations in the seventeenth, eighteenth, nineteenth and
45
Morris, "Towards a Right..." 23.
77


twentieth centuries. The United Nations Working Group on Indigenous
Peoples is currently undertaking a complete review of these
i
documents.^
Several indigenous organizations now hold NGO (non-
governmental, organization) status. They are attempting to make
I
themselves be seen and heard. The first organization to attain this
status was the International Indian Treaty Council, an international
arm of the American Indian Movement, in 1977.
In this struggle between the two dominant ideologies,
indigenous peoples have had almost no voice and little to choose
from. Liberal democratic Christian capitalism had been the source of
their oppression for the past 400 years and Marxist-Leninist
i _il
socialism recognized the oppression and offered a substitute. But
under a Marxist-Leninist government, once the recognition was
achieved, the oppression was deemed to have been lifted, and
identity was subsumed under the umbrella of the new socialist State,
which as assumed to be beyond oppression because it was not fueled
by the same greedy motives as the capitalist State. The reality was
that while cultural aspects of identity were encouraged, this was
allowed because it hastened the expansion and understanding of new
State concepts. And as we shall see, the dominant State people,
whether Russian, Chinese or Nicaraguan, imposed their language, and
culture on all nations within the State.
I ,
Marxist-Leninist views toward land, progress and development
are, if anytjhing, even more radical, and thus harmful to indigenous
peoples, than those of liberal democratic capitalist States.
Marxist-Leninist socialism rejects none of the basic values or
concepts in
these areas, rejecting only religious precepts and
justifications. The acceptance of this view is enhanced by a desire
46
Ibid.| Note 87.
78


on the part| of the Harxist-Leninist socialists to accelerate the
pace of progress and development, while the rejection of religion
would deny indigenous peoples this very basic component of their
identity. The political, economic, and religious choices for
j i
indigenous peoples in the twentieth century has been between
recognition with quick sublimation or continued oppression. This is
'
a choice? !
i
Indigenous peoples had long sought recognition of their
rights. Leaders from the Haudenosaunee had carried their case for
recognition! of their sovereignty to the international arena in the
early 1900's. They were turned back with nothing. Indigenous nations
attempted to find justice within the legal systems of the settler
State and court cases extending 20-50 years were (and are) not
uncommon. However, the decisions were generally in favor of the
State. Bvenj when Indian people won, they did not get land returned
or rights restored.*7 In a materialist system, the compensation is
monetary. Capitalists and Marxist-Leninist socialists, in fact all
. J. .
States, know where the real value lies. Labor has no value when
there is nothing to labor upon or with.
i
i
47See rulings of the U.S. Indian Claims Commission and Edward
Lazarus, Black Hills/White Justice; The Sioux Nation Versus The United
States. 1775 to the Present (New York: Harper Collins Publishers,
1991), 245, j262-63.
79


CHAPTER 6
I THE SOVIET UNION AND CHINA
In the Union of Soviet Socialist Republics (USSR) and the
People's Republic of China (PRC), the policy toward the indigenous
peoples living within their borders is part of the overall theory of
the role ofjnationality in the formation of the socialist state.
The Soviet Union and China represent the 'traditional
Communist' response to this dilemma. When evaluating the effects of
the dominant ideologies on indigenous peoples and the laws relating
to them, Marxist-Leninist socialism as practiced in the twentieth
century presents an important change in implementation; there is no
separation between the theorists and the government. While liberal
democratic theory, Christianity, and capitalist theory are all
intricately, related, this is not explicit. They are all separate
1 >!
theories. Marx called his theory political economy, combining what
previously might have been two contending sources of power into one,
eliminated the third and developed one efficient unit. Consequently,
when discussjing the governmental policies of the Soviet Union and
China, one ijs1 viewing the development of political, economic, and
religious policy all at once.
The Soviet Union
While not true in all cases or for all peoples, the overall
political organization of the Soviet Union, both in the Union
Republics ank smaller divisions such as the Autonomous Republics and
I !
80


Regions, is based on traditional ethnic, or national boundaries.1
This is a reflection of both Marxist-Leninist theory and of the fact
that approximately 50% of Soviet citizens are non-Russian peoples.2
Union Republics represent larger nationalities, while smaller
national it ijes have Autonomous Republics (ASSR), Autonomous Regions
(AR), or Autonomous Areas, depending on the size of the group of
peoples involved.3 In this chapter, mention of the overall problem
I i'
1 1i
of nationalities will be given, however, the focus will be on the
j ;
status of t;he so-called 'small peoples of the north,' the indigenous
peoples of. jthe Soviet Union. The largest 'small peoples,' are the
Komi and Yakut, while others include the Aleut, Chukchi, Evenki,
Inuit, and jsaami. All these nations are contained within the borders
of the Russian Soviet Federated Socialist Republic, the largest of
the fifteen1 Union Republics which comprise the USSR. The Komi and
I
Yakut nations each have their own Autonomous Republic.
The condition of the Soviet Union in 1917 necessitated
concessions| to various peoples in order for the Bolsheviks to
maintain control.4 Although developed earlier, it was during this
I i
time that the right to secede and the equality of all nations
doctrines were put forth by Lenin as methods by which he could
achieve a communist state. Lenin had always believed that the
Socialist State must be unitary and that there was no place for
national differences and aspirations in proletarian
internationalism. "Federation means a union of equals depending upon
I
. I i
1Leonard Schapiro, The Government and Politics of the Soviet Union
(New York: Vintage Books, Random House, 1978), 87.
2Walker Connor, The National Question in Marxist-Leninist Theory
and Strategy /Princeton. NJ: Princeton University Press, 1984), 408.
;! i
3Robert Conquest, The Nation Killers: The Soviet Deportation of
Nationalities (New York: The Macmillan Co., Inc., 1970), 127.
4Connor, 45-49.
81


i: "
consent ... it weakens economic links."* 3 5 But reality forced his
recognition of the existence of nations.6 By the time the
Bolsheviks [attained power, a number of the nationalities were, in
fact, separate.7 8
| i
This1 'conflict produced a new theory in which once a socialist
State was established, the policy of national self-determination,
while still officially available to each nation, was now deemed
unnecessary; because a socialist state has theoretically overcome the
oppressive jcapitalist policies against peoples, thereby eliminating
the need to secede. Since Stalin's time it has been "openly
>\
recognized" that to exercise that right would be "profoundly
1 ! R
counter-revolutionary." This was also true, earlier.
When applied in practice, the concept of national self-
, i j 1
determination led to that which its critics feared most,
! I
separation p in this case the loss of Finland and Poland.9 In order
to keep the! Ukraine, the bread basket of the Soviet Union, Lenin
publicly defended the right to national self-determination while
|
stating within the party that this right must be "corrected through
propaganda and organizational unity."10 11 Administrative measures
'i ..
were thus taken to reduce Union independence to zero."
E ! .
3Ibid..; 120; and V.I. Lenin, The Rioht of Nations to Self-
Pet ermination (Moscow: Progress Publishers, 1979), 51.
6Helene Carrere D'Encausse, "Determinants and Parameters of Soviet
Nationality! Policy" in Soviet National Policies and Practices, ed.
Jeremey R.1 jAzrael (New York: Praeger Publishers, Praeger Special
Studies, 1978), 39.
^Conquest, The National Killers. 120.
8Schapiro, 83.
9Carrere, 41.
10Ibid.;, 41.
11Ibid.j, 41.
82
I


The Communist Party, the true power in the country, was not
' |
mentioned in;,the Constitution until 1936, and its true importance
was not acknowledged until the 1977 Constitution.12 However, the
organization of the Soviet government left the Communist Party and
Moscow holding all significant power, while economic planning and
military layout all belied the administrative organization outlined
!
in the Constitution and refuted the promise of independence for the
13
Union republics.
For Lenin, cultural development and language were to lead to
eventual unification.1^ The non-oppressive socialist State would
. | :
allow national expression in the areas of language, dress,
literature,
a socialist
music and other cultural areas. All of this would be in
context.15 Nationalist in form, socialist in content.
In reality^ I the power of the Communist Party has been the primary
I
unifying force in the State.
While;the 1922 Constitution established the equality of
f
nations, the 1936 Constitution codified the sovereignty of the State
I
as it has been traditionally understood.16 The 1977 Constitution
eliminated the right of the Union Republics to have national armies
(this had been in name only since 1938)17 and preserves central
i |
power. Article 73 allows Union-level competence to expand ad
12
13,
Schapiro, 92.
ConqJest, The Nation Killers. 124.
K
Ibid.
Questions (Peking: Foreign Languages Press, 1975), 10.
15
47; and V.I. Lenin, Lenin on the National and Colonial
V.I., Lenin, November 13, 1905, in Lenin Reader, ed. Stefan T.
Possony, (Chicago: Henry Regnery Company in conjunction with The Hoover
Institution'
502.
on War, Revolution and Peace, Stanford University, 1966),
16,
Carrere, 49.
17Ibid;.L; 56.
83


infinitum.11 If there is any possibility of a federal implication
for an issue, it passes totally from Republic to Union
jurisdiction.19 Working class interests are superior to the
'[' ,0
interest of]nations. This is consistent with the ideology and
states the priorities of the government. Finally, the right to
secede is considerably weakened with the introduction of democratic
, I p4
centralism into fundamental law. 1
The Soviet attitude toward nationalities and the dependence of
their status on Moscow is best exemplified by the removal and
relocation of seven southern nations during World War II and the
elimination|of their status within the administrative organs.22
I i.
Political Organization of the Soviet State Under the 1977
rj
Constitution. Prior to 1990 there were fifteen Union Republics which
i ,
made up thejUSSR, a federation of states. The federation was
designed tb
be very tight, with control at the center.23 The
Constitution of the USSR prevailed over the constitutions of each of
the Union Republics and the Federal government had the power to set
aside decrees and decisions of Union republics.24 Under Article 74
of the 1977 Constitution, the Union had sovereignty over
, i
international representation, treaties, war and peace, admission of
new republics, approval of alteration of boundaries between
republics, approval of formation of new autonomous republics and
18Ibid.; 57.
19Ibid,: 57.
20Ibid.j '57.
I ,
21 Ibid. | 58.
22See Conquest, The Nation Killers.
1 '
"Schapiro, 83.
24Ibid. j !
I 1
r'
84


25
I '
regions within the territory of republics,25 defense, foreign
trade, State security, establishment of basic principles governing
education and basic health, ensuring conformity of all
, l '
Constitutions; legislation on nationality; the legal rights of
, 1 I'
foreigners; amnesty; creation of the All-Union budget (economic
plan); administration of banks, industrial and agricultural
enterprises of 'All-Union significance'; transportation and
communication; money, taxes, credit system, state insurance, loans;
' I
and finally^:establishment of 'basic principles' of land usage and
exploitation,of natural resources.26 The Union also has complete
control over the revenue and expenditures of the Union Republics.27
The Republics are sovereign except as limited above, which doesn't
j 1
leave them any substantive power. This gives very little actual
power to theiindividual Republic and wide latitude to the Union.28
;i '
Marxist-Leninist States also appear to believe in the divisibility
of sovereignty
There
is no provision in the Constitution by which the
Republics can enforce their sovereignty,29 30 and no mechanism by
which a right to secede can be exercised.JU This can arguably be
considered a commentary on the lack of serious consideration given
to the concepts. Each Union republic has its own constitution which
25This:iS not as infrequent as one might assume. Boundaries of the
smaller units within each Union Republic have changed, at the request
of the Union;Republics, rather frequently and their movement reminds
one of the 'flexible' borders of American Indian reservations in the
1800's.
I ,
26Schap|iro, 83-84; and Conquest, Nation Killers. 127.
27Ibid.
. i
28Ibid.I, 85.
29Ibid.j '
30The right to secede is found in Article 72, "Each union republic
retains the [right freely to secede from the USSR."
85


must be approved by, and be in conformity with, the Union
Constitution.
Each!
Autonomous Soviet Socialist Republic (ASSR) is
31
subordinate to the Union Republic of which it forms a part.
11 '
' i Tfp
Consequently:, ASSR's have no right of secession, which is given
I
only to Uni'on Republics. Soviet policy limits the right of secession
to Union Republics having borders with a foreign territory, in order
i
to make this, right practical.33 This appears to support the
accepted international standard of not recognizing a right of self-
determinatijon for enclaves. ASSRs do have their own constitutions,
however these were to be consistent with the constitution of the
Union Republic34 and approval by the Union Republic was
required
35
Union Republic law was binding on the ASSR and
h36
prevailed in case of conflict30 and the union republics can set
I
aside ASSR |and autonomous region laws.37
As isj the case with Tribal Government Constitutions in the
United States written under the Indian Reorganization Act, the
constitutions of all the ASSR's are similar.38 ASSR's do not have a
11 ;
right to their own foreign relations or to maintain their own armed
i '
31
Ibid.1, 97.
32Ibid. See also note 30, above.
!
33Ibid,j i82.
34Ibid.|, 132.
35
IbidJ,; 97.
36Ibid;.
37Ibid.
i[ 132.
, 136.
38Ibid.
,' 134.
86


forces.
39
minorities,
.. few significant concessions have been made to ethnic
i
even in matters of language and culture and the
suspicion or1 nationalism as a potentially destructive force is as
strong as iti ever was."40 There are no obstacles in the way of
. .r
I '
advancement "provided they [persons] are ready to conform in all
respects to overall Soviet policy.41 In fact, the Union
Constitution asserts the equality of all citizens irrespective of
race or nationality in all spheres of 'economic, governmental,
i
cultural and|public and political life,' and "provides for
repression,by the criminal law of all forms of 'direct or indirect'
I" L?
national or. racial discrimination.
Equality in Marxist-Leninist socialist States amounts to
assimilation!for indigenous peoples. In order to progress in the
Soviet State!it is necessary to speak the Russian language and to
study at some of the more advanced universities, which necessitates
i
leaving horned at least temporarily, while at the same time,
thousands of
'foreigners' have been moved to the north to develop
industry ana natural resources and while indigenous peoples are
becoming minorities in their own homelands, they maintain a distinct
and viable culture
43
The Soviet Union welcomes the accommodation
which of its national model,44 which some view as an assimilation
39Both of these rights are granted to the Union republics, however
in practice[they have been of little value to them. Schapiro, 83.
40Ibid,
41
88.
Ibid.,
42Schapiro, 89.
43
Frances Svensson, "Comparative Ethnic Policy on the American and
Russian Frontiers," in Journal of International Affairs. 36 (No.l,
1982), 100.
44
Ibid;1, 89.
87
i
I


trend.45 It is seen as part of the breaking down of national
barriers and the formation of an international consciousness which
communism will bring about.
Other political units, called national districts, were formed
to preserve the rights and cultures of the smaller nations and to
give them time to develop politically and economically. National
Districts can (in theory) become ASSRs when they "master the
complexities,of modern existence."46 The status of SSR, ASSR, or AR
can change based on the number of people of the particular
nationality| living in the region. For example, the Karelo-Finnish
SSR was downgraded to an ASSR in 1956 because. Russian immigration to
the area made them the majority.47
'i
In the Chukotka National District, the people are described
, I
as 'self-governing'48 with control over local activities and
,
renewable resources, but they have little say, except in a
consulting:capacity, regarding new urban european-dominated
: I ;
communities
or the development of mineral resources.49 50 51 The people
..50
do receive what Mr. Mowat terms a 'high percentage *30 of the
profits from the mineral development, and they also receive direct
payments from the government. In 1970 there were only ten National
Districts because these were perceived as a breeding place for
nationalism
51
45Farley Mowat, The Siberians (New York: Penguin Books, Inc.,
1970), 89. I '
46Ibid.
297.
47Congu|est, The Nation Killers. 132.
48Mowat|,, 297.
49Ibid.j ;
50Ibid.j,.. 298.
51Ibid.i
88


Russians are European in outlook and their colonization
practices and reasoning followed similar patterns, but with
significant
differences. The Russian Orthodox church did not attempt
to convert the indigenous peoples and the Czarist government did not
attempt to take over the fur trade. Land was viewed in a different
was too. Because it was contiguous with the rest of the country, it
was not viewed as 'new,' but rather as politically
' i 52
unconsolidated.
r
In 1581, Cossack mercenaries, in search of sable and other
I
furs, crossed the Ural mountains, and in less than 50 years had
crossed Siberia and reached the Pacific.
When the Cossacks first came among us there were about 100
discrete peoples living in Siberia. Now there are 29; and
some, jlike the Topke and Yukagir number no more than 300 or
400 individuals. The vanished races managed to exist with one
another in a state of 'barbarism' for thousands of years, but
they could not endure the benefits of European
civilization.53
i

During the tsarist years the people suffered from exploitation at
the hands of! ;the traders and from the diseases they brought with
them, typhus,,, tuberculosis, smallpox and starvation. The tsar had
little direct impact on the lives of the peoples of the north, such
contact being1 primarily through member of the aristocracy who went
north to exploit resources, and the general policy was one of
neglect, notj outright cruelty, although this did exist. But the
neglect meant that a woman was lucky to raise one of five children
she bore.54 :ln these cases, colonization brought the same results
to indigenous peoples in both hemispheres-.
52Svensson, 90.
53Mowat, 87.
5AIbid., 96.
89


'!
After; ^the revolution, the Soviet government was aware that the
small peoples of the north presented certain special problems which
Jl:1:
must be addressed as a separate issue, even if within the context of
the overallj policy towards nationalities. The peoples of the north
were seen a!s numerous and turbulent.55 In 1922 a special section
l !
within the Commissariat of Nationalities was set up to deal with the
problems presented by way of their being different from the other
nationalities such as the Armenians and Muslims. This special
section was to organize a system of administration suitable to the
cultural background of the peoples; protect them from exploitation;
provide them;with means of production, food, and clothes; regulate
hunting and fishing grounds and reindeer pastures; and study the
'! !.
people in order to find the best way to introduce socialism.
In 1926, it was decided that the clan should be the basic unit
to form the
perform the
native soviet." While this was a sound idea, it did not
way the Soviets hoped it would.56 The clan elders
became the officials and they had no desire to the implement changes
I
desired by ^the Soviet government. For this reason, territorial
soviets were established in the period between 1929 and 1932. These
became the 'national districts and come in varying sizes. The Komi
and Yakut, being the two largest nations, were allowed a higher
status than jtihis. In 1922 Yakutia was made an ASSR and in 1936 Komi
achieved this status. In order to speed development' of the smaller
peoples and prepare them for entry into the socialist economic
system, special concessions were made in 1925. The peoples in the
(i j
national districts were exempted from state and local taxes and
55Terence Armstrong, "The Administration of Northern Peoples? The
USSR," in The Arctic Frontier, ed. R. St. J. Macdonald (Toronto:
University ,df Toronto Press, 1966), 66.
56Svensson, 96.
90


later, exemption from military service and labor service was
granted.57
But tj-Kis recognition of the difference between the indigenous
l'
nations and the other national groups in the Soviet Union did not
prevent the imposition of collectivization. There was a brief period
during which cooperatives were introduced, but under Stalin everyone
was collectivized. By 1931 only 12% of the 'small peoples' had
joined.58 Opposition was strong because the people were being
M -
forced to make changes too quickly.
59
Development of the northern areas was necessary for the Soviet
Union very jearly in its history. The isolation imposed by the West
after the revolution, forced the Soviets to become as self-
sufficient
as possible. The Arctic region is rich in many natural
resources, not the least of which are gold, oil, diamonds, furs,
salt, uranium, and power produced from the many river systems. The
Soviet philosophical attitude toward this necessity was expressed
quite succinctly by some young scientists in Novosibirsk in 1966:
"But surely
you agree it is man's duty to develop the physical
n60
The
world. There can be no higher achievement for man than that.'
i
continuation.of european theory is clear.
The Soviet focus on development of the national culture allows
for, in facjt requires, the use of indigenous language as part of the
educational process. This can be an invaluable tool when it comes to
57Armstrong 1
58Ibid.;: 71
59Ibid.|
60Mowat,! 27'
91


preserving the history and traditions of the peoples.61 The
emphasis on culture has also allowed the development of indigenous
literature.6? "The prime motive of Yakut writers has been the urge
to sustain, revivify and glorify their native cultures."63 The
Yakuts have also kept their own religion, a right granted to all
Soviet citizens in the Union Constitution, and still have shamans.
Although the Yakut participate in the economic progress of the
north, they have stayed in areas traditionally worked by their
people. Thejyj are involved in consumer industries which grew out of
their traditional skill and occupations,6^ and herd reindeer and
work on farms, both of which are traditional.
The Soviet system of development is less harsh than that
imposed by jjthe United States on its indigenous peoples.65 But the
Yakut people believe that the beneficial aspects of the process come
from the Yakut people themselves, not Soviet policy makers
In an
66
interview, Alexandra Yakovlevna, Chairman of the Supreme
Soviet of the Yakut ASSR, said that there is no need for feminism in
Yakutsk because Yakut men and women have always respected each
other. The wisdom of women has always been held to be true
67 i '
wisdom. She does not feel that the Yakut have been exploited by
the Soviets;;she sees the diamonds and gold extracted from Yakutia
61The fact was also acknowledged by the Inuit of Nunavut when
discussing ! the factors involved in the development of their own
territory. See Chapter 8.
62
63
Mowatj, 102.
Ibid.;, 103.
64
Ibid.
143.
65
Svensson, 94.
66
'Mowat,
143.
67
Ibid.j, 217.
92


as the payment for the help the people have received.68 In fact,
she believes the situation may have worked the other way around.
69
The indigenous peoples seem to harbor an inner fear-that they
may eventually lose their identity.69 70 This fear cannot be viewed as
irrelevant' considering the stated goals of the Soviet system, and
the comments of the Chairman could indicate that Yakut leaders may
already reflect this diminished identity. The Chairman's comments
may also be|;an example of only those who are sufficiently socialist
in thought jsucceeding to high positions, or she could have been
saying what !she thought would be acceptable to both the West and to
the Soviet,
government.
In Yamal, north of the 70th parallel, there are rich deposits
of natural; gas. Evenkis, Nenets and Khanty peoples live there and
the Khanty-Mansi Autonomous region (AR) is located there. This AR is
a world supplier of fuel, but they receive nothing from the "energy
pie and sJffer the invasion of oil and gas giants.71 In ten years
j
the people jhave suffered painful decay and almost disappeared
because of> pipeline construction.72 The planners are solving pipe-
laying probjlems on technical grounds and ignoring the interests of
the people;. .Reindeer can only be farmed when all possible pastures
are available because they migrate over a long range. Hunting, the
most important income source for the Nenets, is being destroyed by
the pipeline. The people being displaced by the construction are not
68
Ibid.1,
219.
69Ibid;.j ,i 219.
70Ibid .|, 313.
,1
71B. Prbkhorov, "How to Save Yamal," in International Working
Group for Indigenous Affairs Newsletter No. 58 (December 1989), 116.
72
Ibid
115.
93


being provided with housing.73 The development of the resource is
taking precedence over the welfare of the people and the indigenous
peoples arej not being consulted. The Ministry of Oil and Gas
Construction,, is judged only the volume of work done and so sees the
'obstacles
presented by the indigenous peoples as personal
insults.74 ,This is not in keeping with the stated policy of the
i i
government,! but it does demonstrate the priorities of the Union.
i
Under! Soviet policy, indigenous peoples have not faced the
genocide aJd extermination faced by some other State policies and
they have been able to keep their language and culture intact. In
general, the"Soviet policy has been one of gradual assimilation.
This means jthat although indigenous peoples in the Soviet Union have
more freedom^ in cultural areas, they are just another nationality,
and very small ones numerically. Soviet theory recognizes their
' l ,
differencesjWhile incorporating them into the whole.
In terms of general autonomy practice, Soviet practice falls
short in the! areas of local government, resources, taxation and
foreign relations. In the 'cultural' areas such as language and
' I '
religion Soviet policy exceeds general practice and in the areas of
legal status;, land title, legal jurisdiction, citizenship and
defense/police, Soviet policy follows the standard non-addressing of
the issues;
j The People's Republic of China and Tibet
The case of China and indigenous peoples is of interest for
two reasons!. The first is that China is the only non-Western State
examined. The second reason is that Marxist-Leninist socialism is a
Western concept adapted to a non-western context. So when studying
China, one is looking at a Western political and economic philosophy
^Ibid., 123.
74Ibid.,: 125.
94