Eleventh Session of the United Nations Permanent Forum on Indigenous
Issues
May 7, 2012
Panel Discussion
Presentation
“The Doctrine of
Discovery: its enduring impact on indigenous peoples and the right to redress
for past conquests (articles 28 & 37 of the UN Declaration on the Rights of
Peoples)”
“The Doctrine
of Extinguishment”
“The Doctrine of
Extinguishment of Indigenous Peoples Human Rights”
Robert A. Williams, Jr.
E. Thomas Sullivan Professor of Law and American Indian Studies,
University of Arizona Indigenous Peoples Law and Policy Program,
Tucson, Arizona
To the Secretariat and esteemed members of the United
Nations Permanent Forum on Indigenous Issues, thank you for the invitation to
participate in this Panel Discussion on the theme of “The Doctrine of
Discovery: its enduring impact and the right to redress for past conquests
(articles 28 & 37 of the UN Declaration on the Rights of Indigenous
Peoples).”
My name is Rob Williams. I am a member of the Lumbee Indian
Tribe of North Carolina in the United States, and a professor of law and
American Indian Studies at the University of Arizona.
I want to begin my presentation with a quote from Vine
Deloria, Jr., the pre-eminent Native American scholar of the twentieth century.
In his essay entitled “Trickster and Messiah” Deloria wrote:
The burning question that should
occupy our time should concern where the complex of ideas that constitute
Western civilization originated, how they originated, and whether they have any
realistic correspondence to what we can observe and experience in nature.
It is indisputable that the Doctrine of Discovery is part of
the “complex of ideas” that constitutes Western civilization. In fact, I would
argue that without the Doctrine, Western civilization, at least as we know it
today, would not exist. The Doctrine was central to the invention of the West.
But let us consider this “complex of ideas” to which the
Doctrine belongs, and the contemporary relevance of these ideas to indigenous
peoples in the world who were not colonized by the West. Without question, the
Doctrine’s most important principle, its central animating idea, is the
principle of extinguishment.
Under this principle, the colonizing State asserts the power
to extinguish indigenous peoples’ property rights in their traditional lands
and their rights to self-determination in those lands. Under the Doctrine, the
State also has the power, in essence, to extinguish our languages and
religions, and even our existence by recognizing some, and not recognizing
other indigenous peoples as being indigenous. The State, under this power of
extinguishment, can even terminate that very act of recognition if it so
desires with impunity.
The reality is that this extraordinary power of
extinguishment that is part of the “complex of ideas” that constitutes the
Doctrine of Discovery, has in fact also been adopted by governments in Asia,
Africa, Europe and throughout the world. So, to dispense with Western
euphemisms like “discovery,” “conquest,” or “terra nullius,” the “burning
question” we really should be discussing today involves the “Doctrine of
Extinguishment” of indigenous peoples’ human rights around the world.
Through their laws, regulations and court decisions, through
their dam projects and relocations, through their uncompensated grants of
mineral and timber rights, through their refusal to consult and seek the
consent of indigenous peoples to their development projects, governments around
the world, not just Western governments,
continue to assert what I call this Doctrine of Extinguishment.
The Doctrine of Discovery then, is just one minor cultural
variation on a broader genocidal power asserted by governments over indigenous
peoples generally. This Doctrine of Extinguishment is I contend, the central
problem confronting the global human rights movement of indigenous peoples in
the world today.
To borrow from Vine Deloria, then, the “burning question”
that should occupy our time is where did the “complex of ideas” that helped to
spawn this Doctrine of Extinguishment originate, how did these ideas originate
and do they have any realistic correspondence to what we can observe and
experience in nature?
The answer to that more globalized question, will, to a
degree, depend on the historical experiences of indigenous peoples in each
country around the world, but those answers, I believe, will all share in a
common theme.
This Doctrine of Extinguishment will typically originate in
a language of racism and religious and cultural intolerance which regards
indigenous peoples as savage, backwards, and inferior, and therefore an
obstacle to the progress and development of a superior form of civilization,
the non-indigenous nation-state.
In the West, this racist, dehumanizing language traces back
to the ancient Greeks and Romans, who asserted the right to enslave, conquer,
colonize and in essence extinguish the cultural existence of any group of
peoples they defined as “barbarians.” Those “barbarians,” of course were the
indigenous peoples of Europe, Asia and Africa.
Since the Greeks and Romans, Western civilization has been
in a state of perpetual war with indigenous peoples around the world. The
Catholic Church adopted this same racist language of savagery in the Middle
Ages, when it authorized the Crusades to the Holy Lands against the heathen and
infidel followers of the Muslim faith.
The Popes spoke this same dehumanizing language in
authorizing the conquest, colonization and enslavement of first, Africa and
then the entire New World by papal bulls (a term borrowed by the way from the
Roman Empire). And governments around the world today continue to speak this
same dehumanizing language of savagery whenever they seek to justify their
powers of extinguishment over indigenous peoples.
All of us in this room are familiar with this racist
language that so-called “civilized” nations use when they assert this genocidal
power of extinguishment over the lands and lives and cultural survival of
indigenous peoples. Whether they are part of the West, or from Asia, Africa or
Europe, all governments share in this complex of racist, dehumanizing ideas.
They assume they have the right to extinguish us.
So the “burning question” that we need to address is this:
Does the complex of ideas associated with the Doctrine of Extinguishment have
any realistic correspondence to what we can observe and experience in nature?
The answer to that fundamental question is simple: We cannot and will not be
extinguished. We are not savages, we are not barbarians, we are not backwards,
inferior, or uncivilized. We are indigenous, we are still here, and we will not
be extinguished.
The Navajo grandmothers at Big Mountain will never accept
that their human rights can be extinguished.
The Maasei in Kenya will never accept that their human
rights can be extinguished.
The Igorot in the Philippines will not accept extinguishment
of their human rights, nor will the Yorta Yorta in Australia.
The Mayan people fighting the Marlin mine in Guatemala, the
indigenous peoples of the Amazon fighting the Belo Monte Dam, the Sami and the
Inuit of the Artic Circle, the Hmong and Karen, the Ainu, the Maori, the Awas
Tingni, and all the indigenous peoples around the world reject the complex of
ideas that says that any nation-state from the West, East, North or South can extinguish us, our traditional
lands, our languages, our culture or any of our indigenous human rights.
That is why we are here today, to ask this burning question;
What is to be done? How do we move forward in this struggle, the most important
indigenous human rights struggle of the 21st century, how do we fight this war
against the Doctrine of Extinguishment?
Our guide and our plan, I would contend, must be the
Declaration on the Rights of Indigenous Peoples. Not only Article 28 and
Article 37 but every single article of the Declaration rejects these racist,
dehumanizing principles and the complex of ideas that says the State can
extinguish the fundamental human rights and basic human freedoms of indigenous
peoples with impunity and without consequence.
Full and effective implementation of the Declaration will
extinguish the ability of governments to extinguish us, and that is what we
demand. Implementation of course can be achieved in many ways, by lobbying for
legislation, by bringing cases in domestic courts, and perhaps even by having
the pope in Rome apologize for the Doctrine of Discovery.
I believe one of the most effective strategies for implementation,
however, particularly in the vital area of land rights, is through development
of the Declaration’s principles as
precedents in the international human rights system, through the universal
periodic review process under the Human Rights Council, through UN CERD’s early
warning process, through actions brought under ILO 169, and through petitions
brought before regional human rights bodies like the African Commission on
Human and Peoples Rights, the European Court of Human Rights and the Inter-American
human rights system where the Indigenous Peoples Law and Policy Program at the
University of Arizona represents the Hul’qumi’num Treaty Group in a human
rights case against the government of Canada.
Our goal in that case is simple and direct; implementation
of the basic human rights human rights principles of the Declaration that protect the Hul’qumi’num peoples’
property, self-determination and other human rights in their traditional lands
on Vancouver Island from extinguishment through uncompensated State-sanctioned
clear-cutting and deforestation activities by private developers.
A victory in that case will make it absolutely clear to
Canada that this power of extinguishment is illegitimate under contemporary
principles of international law, and will undermine and deny the continuing
legitimacy of the Doctrine of Discovery’s principle of extinguishment asserted
by Canada and governments around the world.
Bringing these cases is hard work, for the indigenous
communities involved and for their lawyers and NGO’s who work with them. They
require sustained commitment and oftentimes significant resources. But they can
be very effective in securing indigenous peoples' property rights in
traditional lands that were previously denied or expropriated under the
Doctrine of Extinguishment. They directly challenge the complex of ideas that
says that a dehumanizing, racist language of savagery can be used in the 21st
century to violate the human rights of indigenous peoples.
These types of actions instead seek to implement a much
different language of indigenous rights, the language of universal human rights
embodied in the Declaration on the Rights of Indigenous Peoples. Thank you.
