Tuesday, December 3, 2013

Declaration of La Maria Piendamó


V Continental Indigenous Summit of Indigenous Nations and Pueblos of Abya Yala 
November 10-16, 2013 Resguardo La Maria Piendamó, Cauca [Colombia] 
Declaration of La Maria Piendamó 
Friday November 15, 2013


Life is sacred, life is harmony. Living with Wellness is life and harmony.
In order for a Full Life with Wellness, there must be Peace!

Considering:

That we as Indigenous Peoples of Abya Yala have resisted and will continue to resist with dignity and in peace, in accord with our paradigm of Living with Wellness, taking collective actions to fight against the violation of our rights brought about by the historical and systematic exclusion by the states and the dominant society.  Given this, we reaffirm the validity of our own laws, of international treaties such as the ILO Convention 169, the UN Declaration on the Rights of Indigenous Peoples, and of relevant national laws, and thus we reject all forms of exclusion and discrimination by the States who have a moral obligation to implement our recognized rights. 

That the neoliberal economic model which currently is the only paradigm under which the majority of governments are implementing, and which the others cannot escape, has imposed policies of theft and looting of the commons in our territories (land, water, forests, biodiversity, oceans, air and our traditional knowledge) through legal mechanisms such as Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs), legal contracts with multinational companies such as for example the recent threat against the sovereignty of Indigenous Peoples under negotiations known as the “Agreement of the Alliance of the Pacific”. 

This new neoliberal economic project, through successive national governments who have radicalized their extractive economic policies in alliance with multinational companies backed by national oligarchies, is subsidizing the continuation of the capitalist model.  Furthermore, these policies have militarized territories, protest is criminalized and mobilizations of Indigenous Peoples and social sectors are penalized with repression, persecution, prosecution of authorities and Indigenous and community leaders, producing an State policy aiming to guarantee the institutional support for looting and predation. 

This predator model of irrational exploitation has endangered life of all beings on the planet and the government states have made evident that they do not have policies or strategies to effectively counteract the impacts of climate change and its effects.  Instead however, the prevailing economic interests pretend to consider carbon as a commodity, and now they want to create a fund to put our forests on the market via the REDD program.  Furthermore, in an effort to solve their crisis by shifting the climate burden towards our territories, they they have agreed on the concept of "green economy" and the marketing of the beauty of our mountains, forests, rivers, lakes, traditional knowledge and conservation areas, such as the territory of Uncontacted Peoples, thus rendering our territories and the living environment of all beings ever more vulnerable, without consultation or consent of our people, deepening the exclusion under which we are forced to live.
The neoliberal policy is in a generalized structural crisis. The crisis is economic and environmental, it involves climate, energy, food, and the migration of thousands of human beings as never before in history, with the accompaning loss of social morality, and yet still the alternatives proposed are based on the free market principles and further privatization in order to bring salvation from the crisis.  And so in response the Indigenous Movement intends to strengthen our alternative economy of Living with Wellness (Sumak Kawsay), building upon our community economies, which should be recognized, strengthened, and exercised by all Peoples, and so strive to establish this indigenous economic model as state policy alternative to post-neoliberalism.

That the Indigenous Peoples of Abya Yala, exercising self-determination, having met in the Territory of the Indigenous Reserve of La Maria Piendamó, Cauca [Colombia] land of peace, coexistence, dialogue and negotiation, with the participation of more than four thousand delegates of Indigenous Peoples, Nations of Abya Yala, and after three days of discussion and debate about our situations, we formulated our proposals, we have exchanged our experiences in order to continue strengthening ourselves at the local, national, continental and global levels, and guided by our traditional spirituality and the wisdom of our elders, WE RESOLVE:
1. To recognize the historical significance of the territory of La Maria Piendamó as a space of coexistence, dialogue and negotiation between Indigenous peoples and the State of Colombia; we affirm that here in La Maria Piendamó has flourished the word, a spirit of coexistence and dialogue between a diversity of cultures that we have encountered in the V Indigenous Summit, but we can not help to feel outrage at the assasination of two Indigenous brothers during the the V Summit, and we call for peace to come to Colombia and to all Indigenous Peoples of the world. 

2. To ratify the Declaration of the II Continental Summit of Indigenous Women of Abya Yala, the Declaration of the Indigenous Youth Assembly, and the Declaration of the II Continental Summit of Indigenous Communication. 

3. To commend the enduring resistance of our Indigenous Peoples and social sectors of the continent against the neoliberal capitalist model, recognizing the political struggles in diverse national and global arenas which represent how the We the Peoples continue on the path of fighting for dignity and in defense of Mother Earth, struggles for which we now demand respect for sovereignty and self-determination, tolerance, legal guarantees, sincere mechanisms of dialogue, consultation for free, prior and informed consent and the full and effective implementation of all the human rights recognized by the States of the continent and in the entire world.

4. To commend the Indigenous, social and popular Minga in Colombia under the leadership of Indigenous Peoples grouped under the National Indigenous Organization of Colombia (ONIC) and the agrarian strike directed against the damaging impacts of Free Trade Agreements upon the activities of campesinos (rural farmers) and Indigenous Peoples.  Just as the present Peace Dialogue process initiated in Cuba between the government of Colombia and the FARC; we urge the parties to include in this process the participation, proposals and aspirations of Indigenous Peoples within a framework of social justice to ensure an effective peace for all people.

5. We recognize and salute the collective and judicial actions taken by the Indigenous Peoples of the Amazon of Ecuador in their fight against the oil company Chevron-Texaco for environmental pollution and its social, territorial and cultural impacts.  The decision of the National Court of Justice ratifies payment for damage caused, a decision which we demand compliance and enforcement of the judgment.  We call on all Indigenous Peoples of the continent and the world to take legal and collective actions in defense of territory and life, taking as reference the jurisprudence established under the National Court of Justice of Ecuador and the Interamerican Court of Human Rights.

 6. To reject the action of the Constitutional Court of Guatemala that annulled dictator Efrain Rios Montt’s sentence of eighty years in prison for the genocide of Maya people, which was issued by the Supreme Court of Justice of Guatemala.

7. In 2014 the United Nations will host the World Conference on Indigenous Peoples in New York where the States will present their reports and will analyze the application of the "UN Declaration on the Rights of Indigenous Peoples".  The V Summit states that those attending should be legitimate representatives of territorial organizations of representation of our Nations and Pueblos, so we call on the organizers of the UN to accredit unrestrictedly, so that the proposals elaborated before, during and after the V Summit can be presented.

8. To recognize the role of Indigenous Peoples of Abya Yala and of the world in the exercise and enforcement of collective rights through actions and proposals aiming at the realization of Pluri-national states, policies of Living with Wellness, the respect and protection of the rights Mother Earth, democracy and community economies.

9. We express our solidarity with the Cuban People for its historical struggle against the immoral economic blockade imposed by the U.S. empire, and we demand the immediate release of the five Cuban political prisoners.

10 . We manifest our solidarity with our brothers and sisters who are victims of states’ violence for their Indigenous resistance in defense of life and territory.  Similarly, we condemn structural violence against Indigenous women .



We make collective commitment to: 


1. Strengthen the unity of organizational processes and the self government of Indigenous Peoples and Nations in their own territories, at the national, continental and global levels, in order to strengthen and reinvent strategies of resistance to the neoliberal and extractive economic model.

2. Actively participate within the continental processes of Indigenous articulation towards continental summits of Indigenous Peoples, women, youth, media and other manifestations of Indigenous Peoples that contribute to the coordination and unity of Abya Yala, under the leadership of our territorial organizations: COICA , IOTC , CICA and Waq'ib KEJ.

3. Continue and radicalize our measures in the struggle for the defense and recovery of our territories despoiled by extractive industrial activities, armed conflict, mega-development projects and all other forms of violence that affect the integrity of our territories and destroy the harmony and the ways of life of Indigenous Peoples.

4. Denounce the assasinations, the criminalization, the persecution, and the prosecution of our traditional authorities of Indigenous Peoples, leaders of our nations, by the military, political and judicial authorities of the states, and we call for the complete cessation of these acts.

5. Exercise our own and collective rights in the territories of the Indigenous Peoples of Abya Yala, especially the right to free and informed prior consultation and consent; we demand that States implement and respect the rights recognized in the international legal frameworks and instruments, and engage in legal actions before the appropriate international bodies to bring justice forward regarding the violation of the individual and collective rights of Indigenous Peoples.

6. Implement the model for Living with Wellness as the alternative of Indigenous Peoples to all humanity.  In this framework we are committed to building life plans and community strategies for Living with Wellness with each of our Nations and Peoples (territory, education and culture, health, economy and production, institutional development, community organization and conflict resolution).

7. Strengthen participation of women as actors in the structures of the Indigenous Peoples, and all other national and international institutions, and so also guarantee the exercise of rights and access to justice in the present and future so that participation is equal/dual/complementary (women-men), and shall also include the Indigenous Youth.  Only this way will we ensure the sustainability of our cultural identity and organizational processes.

8. Recognize the active and decisive role of women in the resistance to extractivism and ensure their participation in decision-making power in the exercise of self-determination of Indigenous Peoples.

9. Promote the creation of the Youth Council of Yala Abya ensuring equitable and effective participation in the organizational process of Indigenous Nations and Peoples, as a coordinating body for articulation of  joint agendas with participation of young people in order to organize the First Continental Summit of Indigenous ​​Children and Youth in the framework of the VI Continental Summit of Indigenous Peoples.

10 . Declare October 12 as a day of Continental Indigenous Resistance against the assault of extractive capitalism and the plundering of natural resources by mega-mining, petroleum and hydrocarbon exploitation, mega-development projects, in reaffirmation of the self determination of Indigenous Peoples.
 
11. Effectively and strategically implement a "Diplomacy of the Peoples" in the framework of solidarity among Indigenous Peoples of the region and promote "diplomatic missions" so that we can strengthen the impact and the advocacy for our collective rights in face of the Government States and before the international agencies in order to demand urgent attention to serious situations of violation of the collective rights of Indigenous Peoples.

12. Strengthen our own economic systems as Indigenous Peoples by strengthening our community commerce cooperatives, with barter and trade, fairs of products, and community markets.  We shall promote seed recovery and the plant knowledge of our grandparents, articulated from the grassroots community bases, with inter-bioregional scope and networks superceding national borders, and extending across continents in order to ensure the healthy nutrition for our nations and in harmony with the natural world, guided by the Sumak Kawsay – Living with Wellness.

13 . We call for a Continental Indigenous Minga to realize Life in its Fullness, and Living with Wellness for the protection and defense of our territories, with self-determination, autonomy and self-government, with our own ways of development, and to create our own systems of defense (Guardia Indígena) in our territories.

14 . Articulate and develop an indigenous continental agenda of communication, with actions and campaigns to influence the legal framework and the public policies regarding median and communication in context of the States, and to empower the weaving processes of our the own communication systems, traditional and modern, as fundamental axis for the defense of our territories.

 15. Revitalize our own education systems with wisdom of our elders from our territories in order to address the alienation of our children and youth from their cultural identity and traditional territories, and defend the systems of intercultural education in the countries of Abya Yala.

16 . Always consider the active participation of our wisemen and wisewomen and spiritual guides in the activities and events within our territories, and beyond in intercultural horizons. 
We demand: 

1. Of the States, the recognition and implementation via political reconstitution of Pluri-national States, which implies the peaceful coexistence of Peoples and Nationalities each with their own systems of life along with the respect of individual and collective rights; thus taking a step towards the realization of post-neoliberal states, rejecting their neoliberal policies of of capitalism, and their vertical superstructures.

2. That States shall develop public policies that recognize diversity, autonomy and self-determination, and to declare Mother Earth and Water and all other elements of the territory as living beings and legal subjects of rights.

3. For States to implement the right to prior consultation in order to obtain the free, prior and informed consent of the community, and to respect the results the community consultations undertaken by Indigenous Peoples in relation to public policies, laws and mega projects in our territories, in compliance with our own laws and the Convention 169 of the ILO.

4. We demand from States a mandatory implementation of the rights of Indigenous Peoples as recognized in the ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples, which guarantees self-determination of Indigenous Peoples, among other rights.

5. We demand the immediate suspension of exploration, exploitation, and the incremental use of of agro-toxic and transgenic organisms in the territories of Indigenous Peoples.

6. We reject Free Trade Agreements and Bilateral Investment Agreements that violate the collective rights of Indigenous Peoples, in violation of the Pachamama (Mother Earth), and whose effects are threat to the life systems of Indigenous Peoples.

7. We Demand the cessation of persecution and criminalization of social movement leaders, as well as the destruction of Indigenous and Social organizations of human rights defenders and defenders of the rights of Pachamama (Mother Earth).

8. We demand of the UN system an urgent Universal Declaration of the Rights of Pachamama (Mother Earth) on the occasion of the World Conference on Indigenous Peoples in 2014. 

Territory of the Indigenous Reserve La Maria Piendamó, Cauca [Colombia] Nov. 15, 2013




Communiqué to the Vatican State

YouTube:
V Continental Indigenous Summit Abya Yala 
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SoundCloud:

Interview with Nikki Tulley, Dineh - Navajo Nation and Marie-Eve Drouin Gagne, Canada
"The View from the North."

Video Inteview:
Tupak Huehuecoyotl 
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 NAFTA and the UN Declaration on the
Rights of Indigenous Peoples

The Law of Exceptions




Memory of the Continental Indigenous Movement
1990-2013
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Embassy of Indigenous Peoples
www.nahuacalli.org




Monday, November 25, 2013

A Concept of Native Title by Leroy Littlebear


A CONCEPT OF NATIVE TITLE

By Leroy Littlebear  (1982)



Presently in Canada the issue of aboriginal rights, Indian title, and land claims by the Indian people are issues that to the people of Canada are major concerns. These issues are of a major concern not only because if recognized as legitimate and legal it means the payment of large sums of money by the people of Canada to the Natives of this country, but they also have implications for the development and exploitation of the natural resources, especially oil and gas, and for the ecology.  But so far, neither the Canadian Government nor the people at large have come to grips with these issues.  It is probably more correct to say that they do not want to come to grips with them.

The courts of Canada have had several opportunities to deal with aboriginal rights, but not unlike the government, they too have avoided dealing directly the issues. They find one technicality or another to dismiss a case.

In regards to land, aboriginal rights includes native title, and land claims almost exclusively deals with the issue of native title.  In this short paper, the writer will attempt to present a concept of native title for purposes of educating these people who are in a position to do something about these issues.

Three recent court decisions have attempted to deal with native title: Calder v. Attorney General of British Colombia[1], referred in layman's terms as the “Nishga Case”; Kanatewat v. James Bay Development Corporation[2], and its sequel, James Bay Development Corporation v. Kanatewat[3], better known as the James Bay Cases; and Re Paulette and the Registrar of Land Titles[4].

In the Calder case, the Supreme Court of Canada held against the Nishga Indians of British Columbia. Their holding was to the effect that if the Nishgas had title, this title had long ago been extinguished by adverse acts on the part of the British Crown. The Court also reasoned that Indian title does not exist independent of legislation recognizing it.  But the court did not define Native Title.

At the superior court level of the James Bay cases, the judge held that Indians had aboriginal title. But the Quebec Court of Appeals reversed the superior court's decision and in essence held that there is no such thing as aboriginal title.  They reasoned that no treaties had ever been signed in the James Bay area, therefore, no Native title exists.  But this of course, is ridiculous because treaties are a means of extinguishing Indian title and not a means of creating it.  But both courts did not define Indian title.

In the Paulette case the judge, in handing down his decision on whether the Indians of the Northwest Territories could lodge a caveat in regards to the land they were claiming, held that arguably the Indians had a legally recognizable interest in the land in spite of the fact that the area claimed was covered by a treaty[5].  He reasoned that the Treaty could not be interpreted as a total surrender and should be looked at as a peace and friendship treaty.  At the Court of Appeals level, again, the lower court's decision was reversed.  The Court of Appeals in essence held that a caveat could not he lodged against a sovereign without its permission.  Here again the court did not define Native title.


Important as these decisions are and the implications they have for aboriginal rights in Canada, the single most important decision is St. Catherine’s Milling and Lumber Co. v. The Queen[6], handed down by the Privy Council.  The Council held “that the tenure of the Indians as a personal and usufructuary right, dependent on the goodwill of the sovereign”; that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian’s title, which became a plenum, dominium whenever that title was surrendered or otherwise extinguished”.  In other words, the British Crown, prior to the discovery of North America, has always had title to the lands in North America in an a priori sense.  The result of the St. Catherine’s Milling and Lumber Co. case is that the British, by simply setting foot on North America and planting a rag attached to a pole on the shores, acquired the title to Indian lands.

This ritual, i.e. the coming ashore and the planting of a flag and the claiming of the land for the Monarch, is sometimes referred to as "Discovery". The Doctrine of Discovery is one justification for claiming fee simple title to lands in North America.  But the doctrine has been abused, misconstrued, and misinterpreted by the white man.  Chief Justice Marshall of the United States Supreme Court, and one of the first to use the Concept or Discovery in his decisions, said in the Johnson and Graham’s lessee v. Mc’Intosh case[7] that discovery was a doctrine meant to apply to the European powers for their own orderly conduct in dealing with the aboriginal people of North America.  Hence, discovery was not meant to apply to the Indians.  It was not meant to mean fee simple ownership.  To the contrary discovery can be analogized to a ‘business franchise’.  Just as a business franchise gives exclusive rights to the owner of the franchise to enter into business relations with people, within the geographic area of the franchise, discovery was meant to give a European power which came to the shores of North America the exclusive right to deal with the Indians whose territory covered or included the particular area discovered by a European power.  A right to deal with people certainly does not give ownership to their property.

Before moving on, the writer would like to consider two separate but not unrelated fundamental questions.  Firstly, in regards to the reasoning of the Privy Council in the St. Catherine’s Milling and Lumber Co. case, the writer would like to ask, “What is property?” Most authorities would define property to be the relationship that people have about a thing.  Taking this definition and applying it to the statement by the Privy Council that the Crown has always had underlying title to the lands in question how is it possible to have a relationship about a thing, in this case, land, which a people do not know exists?

In regards to the doctrine of discovery, it interpreted as giving fee simple ownership, rather than being in the nature of a franchise, then should not the doctrine have a geographic limitation, in the same way that the Royal Proclamation of 1763 has been held not to apply to terra incognita?

When it come to the consideration of Native title, most authorities reason that Indians have no concept of property ownership and therefore, how could they have title?  But this is nonsense!  It is high time the Government and the Courts stop using as premises false reasonings such as “personal and usufructuary right dependent on the good will of the sovereign" for stare decisis sake.  At one time reasonings such as were forwarded in the St. Catherine's Milling and Lumber Co. case may have held water and we can, at least, give them the benefit of the doubt because people probably did not know any better. But we know better today, and we know different.  At least, we claim to be one of the most advanced societies this world has ever known.  It is time we put out intelligence to work in a way that will do justice to our claim!

In order to understand the property concepts of any society, one must have some appreciation of the overall philosophy or habitual thought of that society.  By habitual thought, the writer means the philosophical premises that are basic to a culture; premises that a society used to relate to the world.  The habitual thought of Western Occidental society is very linear and singular.  A good example of linear things is Western Occidental society's concept of time.  Time is conceptualized as a straight line.  If one attempted to picture "time" in his mind, he would see something like a river flowing toward and on past him.  What is behind is the past.  What is immediately around him is the present. The question is upstream.  But one cannot see very far upstream because of a waterfall, the waterfall symbolizing the barrier to knowing the future.  This line of time is conceptualized as quantity, especially as lengths made of units.  A length of time is envisioned as a row of similar units.

A logical and inherent characteristic of this concept of time is that once a unit of the river of time flows past, that particular unit never returns...it is gone forever.  This characteristic lends itself to other concepts such as "wasting time”, "making up time”, "buying time", “being on time", which are unique to Western Occidental society.

Another characteristic of this linear concept of time is that each unit of time is totally different and independent of similar units.  Consequently, each day is considered a different unit, and thus a different day.  Every day is a new day, every year is a new year.  From this the reader can readily understand why there is a felt need among Western society to have names for days and months, and numbers for years.  In general, Western philosophy is a straight line.  One goes from A to B to C to D to E, where B is the foundation for C, and C is the foundation for D, and on down the line. 

Many Native people think in terms of cyclicity.  Time is not a straight line.  It is a circle. Every day is not a new day, but the same day repeating itself.  There is no need to name each day a different name.  You only need one name: day.  This philosophy is the result of a direct relationship to the Macrocosm.  The sun is round; the moon is round; a day is a cycle – daylight followed by night; the seasons follow the same cycle year after year.  A characteristic of cyclical thinking is that it is wholistic, and the same way that the circle is a whole.  A cyclical philosophy does not lend itself readily to dichotomies of categorizations, nor fragmentation, nor polarizations, whereas linear thinking lends itself to all of the above.  Linear thinking, also, lends itself to singularity.  For example, “there is only one great spirit”, “only one true rule”, “only one true answer”.  These philosophical ramifications of Western habitual taught result in misunderstanding wholistic concepts.  Westerners relate themselves to only one aspect of the whole at the time.

The linear and singular of philosophy of Western society, in the cyclical and the wholistic philosophy of most Native people can readily be seen in the property concepts each society has.  British concepts of ownership or title dissimilar to Native concepts of land ownership. An underlying premise of the British property system is that no one can own land in the same way that one can own a book. One cannot possess land in the same way that one can possess a book. Possession forms a large part of ownership.  Since one cannot own land in the same way that he can own a book, a system has been devised by the British to give symbolic ownership.  This system is known as the estate system.  Under the estate system one cannot outrightly own the land, mainly because land outlasts human beings.  The land was there before the present owner, and will still be there after the present owner passes.  Consequently, one can only have an interest in the land called an estate.

The British developed a hierarchy of interests or estates.  At the very top is "a fee simple absolute”. It is a possessory fee simple absolute, the largest estate known to the law.  Even though a parcel of land has geographic bounds, when considered in terms of time, this estate is said to be of infinite duration.  It is a present, freely alienable, possessory estate.  There are no other outside interests.  A fee simple absolute can be symbolized as A (grantor) to B (grantee) and his heirs.

On down the line come the defeasible estates. The first defeasible estate is the fee simple determinable (with a possibility of a reverter).  It is possible that A, a landowner in a fee simple absolute will grant land to B with a condition, or limitation which will cause the estate of B to come to an end upon the happening of a certain event.  The fee simple determinable can be symbolized as A (grantor) to B (grantee) plus a condition (so long as liquor is not sold on the premises).  The interest retained by the grantor is known as a possibility of a reverter.  The grantee has all the same rights in regards to the land as one having a fee simple absolute except for the one condition, hence he has a lesser interest than one having a fee simple absolute.

Another defeasible estate is the fee simple subject to a condition subsequent.  It can by symbolized as A (grantor) to B (grantee) on the condition that liquor is never sold on the premises; but if liquor is ever sold on the premises, the grantor shall have a right to enter. This interest is not greatly different from the fee simple determinable. The main difference is the interest retained by the grantor.  In the F.S.D., the grantor interest automatically terminates on the happening of an event.  As soon the condition is broken, the fee reverts back to the grantor.  In the F.S.S.C.S. the fee does not automatically revert back to the grantor on the happening of an event or when the condition is broken.  The grantor or his heirs must exercise the right to re-enter before the fee reverts back.  If the right of re-entry is not exercised, the fee remains in the grantee in spite of the condition being broken.

Another step down the hierarchy of estates is the Fee Tail, which has been phased out of British common law. The fee tail limits the class of heirs capable of inheriting to those who likewise answer the description of lineal descendants. When and if the line of lineal descendants runs out, the estate tail comes to an end.  The Grantor retains a non-posessory, future estate called a reversion.  A fee tail can be symbolized in legal language as follows: A (grantor) to B (grantee) and the heirs of his body.

There are a number of other interests or estates such as a life estate, indefensible vested remainders, contingent remainders, executory interests, and a number of non-freehold estates.  But for our purposes, the above will suffice.



A couple of observations can be made in regard to the estate system.  Firstly, the system is linear vertically.  The system is also very singular.  It is geared to the individual ownership of land. Secondly, an underlying goal of the system is to facilitate transferability of the different interests.  Thirdly, the system necessitates an extensive and complicated registry. It makes possible to chronologically trace previous owners. If one went back far enough to the original source or original owner, one would discover that it is the Crown or the Monarch.  In other words, the source of title is the Crown.

Indian ownership of property, and in this case, land is wholistic. Land is comunally owned. Indian property ownership is somewhat akin to joint tenancy: the members of a tribe have an undivided interest in the land; everybody, as a whole, owns the whole.  In regards to title, to use the language of the estate system, the Native concept of title is somewhat like a F.S.D., or a F.S.S.C.S, or a F.T. or a combination of all three.  It is as though the original grantor of the land to the Indians put a condition on it… “so long as there are Indians”; “so long as it is not alienated”; “on the condition that it be used only by Indians” etc.  In other words, the Indian concept of title is not equivalent to a fee simple, but is somewhat less than fee simple. This is not to say that they were not capable of conceiving a fee simple concept.  If one attempts to trace the Indian’s source of title, one will quickly find the original source is the Creator.  The Creator, in granting land, did not give the land to human beings only but gave it to all living beings.  This includes plants, sometimes rocks, and all animals.  In other words, deer have the same type of estate or interest as any human being.  This concept of sharing with fellow animals and plants is one that is quite alien to Western society’s concept of land.  To Western society, only human beings have a right to land, and everything else is for the convenience of human beings.  The concept of the Indians of sharing with fellow living things is not unrelated to the concept of social contract that has been forwarded by some philosophers.


For instance, Rousseau and Locke refer to a social contract to explain the origins society and government.  But their social contract refers to human beings only. If the idea of a social contract is applied to Native people, one will find that it includes not only human beings but all other living beings.

An observation about the Indian’s concept of land title includes a reference back to the basic philosophy.  Indian property concepts are wholistic.  Ownership does not rest in any one individual, but belongs to the tribe as a whole, as an entity.  The land belongs not only to people presently living, but it belongs to past generations and to future generations. Past and future generations are as much a part of the tribal entity as the living generation.  Not only that, but the land belongs not only to human beings, but also to other living things; they, too, have an interest.

The question inevitably arises as to just what the Indians surrendered when they signed treaties or engaged in activities that today the government claims were actions on the part of the Indians extinguishing their title.  Firstly, the Indian concept of land ownership is certainly not inconsistent with the idea of sharing with an alien people.  Once the Indians recognized them as human beings, they gladly shared with them.  They shared with Europeans in the same way they shared with the animals.  But sharing here cannot be interpreted us meaning that Europeans got the same rights as any other Native person, because they were not descendants of the original grantees, or they were not parties to the original social contract.  Sharing certainly cannot be interpreted as meaning that one is giving up for all eternity his rights.

Secondly, the Indians could not have given a fee simple in any land transaction they may have engaged in, because they did not have a fee simple.  They were never given a fee simple by their grantor.  It is well known in British property law that one cannot give an interest greater than he has.


Thirdly, Indians could not have given an interest equal to what they were originally granted, otherwise they would be breaking the condition of the fee granted. Not only that, but they are not sole owners of the original grant.  The land belongs to the past generations, the yet to be born, and the plants and animals.  In order to give an interest equal to the original grant, one would have to get a transfer from those holding an equal interest, and these would include the dead, and the yet to be born, and the plants and animals.  Has the Crown ever received a surrender from these other living entities?

Fourthly, the only kind of interest that the Native People have given or transferred is an interest lesser than they had, for one can always give an interest smaller than he has.  For instance, if one holds an F.S.S.C.S., one can always give away a life estate.  From the above one can readily conclude that the Indians did not surrender very much if they surrendered anything at all.

Fifthly, the above philosophy, property concepts, and ramifications and implications thereof, may sound ridiculous and fairy-tale-like, but what philosophy does not? Do biblical stories make more sense?  To Native people they sound rather ridiculous and make believe. Does the "Crown" as a fictitious entity make more sense?  The writer does not think so.


Canada as a sovereign nation, via the Crown, claims ownership and sovereignty over all the land within its boundaries.  But how does one gain ownership and sovereignty over particular piece of land?  One can gain sovereignty through aboriginal rights which basically means that one is the original occupier of a particular piece land.  One can gain sovereignty through conquest.  One can gain some land rights through adverse possession.  One can gain title through conveyance.   Lastly and uniquely to the Americas, and claimed to be just by Europeans, one can gain title through discovery. 

If we look at Canada, and ask again, “How did she gain title to the lands within its boundaries? “  It certainly cannot claim title via aboriginal rights.  Only Native people can claim aboriginal rights.  It cannot claim sovereignty through conquest.  Who did it conquer? Sure, one or two small tribes may have been conquered, but certainly not most Indian tribes.  On the contrary, she chose to enter into peace and friendship treaties with most tribes.  If one tribe was actually conquered, it certainly does not mean that all Indians were conquered.  Conquest has geographic limitations in the same way that the Royal Proclamation has geographic limitations.

In the Nishga case, the court in a roundabout way, suggests that the Crown gained title to lands in British Colombia via adverse possession, i.e. adverse acts on the part of the crown.  But the theory of adverse possession could not apply to Native peoples because the land was not individually owned.  Secondly, adverse possession does not apply to a sovereign because an underlying assumption of the theory of adverse possession is that the adverse possession must have his title recognized by a higher entity.  In the case of the sovereign, there is no higher entity.

If the Crown can claim any type of interest, it can legitimize this claim through conveyance and only through conveyance.  But as the writer has already shown, the Indians surrendered if they surrendered anything at all, is a lot smaller to what the government lays claim to.  It certainly is not a fee simple.

The only other means by which Canada can justify its claim to Indian lands is through discovery.  But then the writer has shown how discovery has been misinterpreted and misconstrued.

When the courts and the government say the Indian’s title is dependent on the goodwill of the sovereign, and that the Indian’s interest is a mere burden on the underlying title of the crown, the question to ask is: “What did the Crown get its title from? And how?”

When the courts refer to Indian title, they should say something to the effect of, “the title or interest of the Crown is a mere personal and usufructuary interest dependent on the goodwill of the Indians.”  The Indians have all along had a paramount estate underlying the Crown’s interest.  The Crown’s interest is a mere burden on the title of the Indians.

As a conclusion to this short paper, the writer would like to state that his hope that he has in some small way contributed to a better understanding of the Indians property concepts, which in turn, hopefully, will facilitate a better understanding by those who are not familiar with Indian thinking.  The writer hopes that, in some small way, by this paper, he has contributed toward educating non-Indians about why and the basis for the land claims the Indians are making.

If justice and fairness are underlying goals of today’s government and court system, then the concepts and the philosophy of Indian people should certainly be taken into consideration and given as much weight as British concepts and philosophy.  But if justice and fairness are not underlying goals, then we should stop covering ourselves with a false aura of sacredness and bring out things in the open, so everybody knows where they stand.  In other words, if we cannot be bothered with justice and fairness, we should, at least, be truthful.




BIBLIOGRAPHY


[1] Calder V. Attorney-General (1971). 13 D.L.R. (3d) 64, 74 W.W.R. 481.
[2] In Re Paulette, (1974) 42 D.L.R. (3d) 8.
[3] Kanatewat V. James Bay Development Corpo ,and the Attorney General of Canada, Quebec Superior Court of Appeals, November 22, 1973
[4] James Bay Development Corp. V. Kanatewat, Quebec Court of Appeals, November 22, 1973.
[5] Treaty No.11 (1921)
[6] St. Catherine<s Milling and Lumber Co. V. The Queen (1887) 13 S.R.C. 577.
[7] Johnson V. Macintosh 21 U.S. (8)


Saturday, November 23, 2013

Message from Edward Wemytewa, A:shiwi Nation


Edward Wemytewa
P.O. Box 1528
Zuni, NM 87327, USA
wemytewa@hotmail.com


November 5, 2013



Tupac Enrique Acosta

TONATIERRA

Phoenix, AZ



RE: Message to Organizacion Nacional Indigena de Colombia (ONIC) y Coordinadora Andina de Organizaciones Indigenas (CAOI), hosts of the “V Continental Summit of Indigenous Peoples and Nations of Abya Yala” and “II Continental Summit of Indigenous Women


Dear Brother Tupac,

My greetings to you and your family from the A:shiwi Nation.  I greeted you yesterday.  I greet you today, perhaps using the same greeting as I did yesterday.  I will greet you tomorrow to let you know that we share and breathe the same air.  You are a part of me as I am a part of you, my friend. 

Thank you for inviting me to the “V Continental Summit of Indigenous Peoples and Nations of Abya Yala” and “II Continental Summit of Indigenous Women” being held at the Indigenous Reserve of Maria Piendamo, Cauca Colombia, South America.  Unfortunately I cannot make the trip as you know I have been fighting to regain my civil and political rights, and it has exhausted me financially. But if I may, I would like to rely on your kindness and ask you to take this letter and present it on my behalf as well as the brave women and men from my community who want to realize the true leadership of our Indigenous Nation(s).    My people - people of the greater Southwest region of the United States and Mesoamerica - have deep roots that connect us to the cultural landscape, and it is imperative that we, as Children of Earth, stand in solidarity to protect our cultural landscape for the sake of our children and those other living things that depend on it; those things that are crucial to maintaining the ecological balance of the world.
I am an elected official.  I had the second highest votes in a duly called election; however, I am not allowed to serve in office because I will not bow to a Catholic oath.  In spite of the fact that my traditional Indigenous leaders have given me the oath and that I have fought through the legal processes and won, I am still denied my right to work for my people. 

I am a member of the A:shiwi (Zuni) Nation, born and raised in the Zuni Village located in New Mexico, USA.  My clans are Tobacco and child of the Raven.  As a life-long artist - a visual artist, traditional storyteller, and cultural linguist - I intend to keep contributing my cultural and professional expertise to the creation of new stories and performances that provides a way to maintain and strengthen our traditions through our native language in a culturally meaningful and revitalizing manner.
Earlier this year, in April, TONATIERRA hosted the “Dismantling of the Doctrine of Discovery International Conference” in Phoenix, AZ, USA. Tonatierra has been involved in important work and continues to be in the forefront of educating the international community about issues impacting our Indigenous communities.  Their organizing gives Indigenous leaders an opportunity to attend such forums to share and learn from each other - to bring unity, which is so important in advancing our continental voice.  I commend TONATIERRA for their leadership and vision.

The reason I brought up TONATIERRA is that I want to propose sharing the Outcomes of the Dismantling the Doctrine of Discovery International Conference.  The conference elevated our understanding of each other and thereby created a sense of unity. It was important to build from the efforts of individuals and organizations in addressing the ongoing impacts of the Doctrine of Discovery from the perspective of Indigenous Peoples in the spirit of self-determination.  As a grassroots leader, I caution though, that we cannot use the term “self-determination” or “Sovereignty” as a broad brush to paint our communities. What I mean is that we have to continue to educate and instill the understanding of the terms in order to create a resource pool of thoughtful leaders, so that implementation of “sovereignty,” for example, protects the rights of our peoples, as intended, and not to use it as a shield against the people to protect self-serving leaders and/or perpetuating the colonizer mentality.  We cannot have leaders squandering our natural resources and/or compromising our rights.  I say this because the behaviors brought on by the teachings through the Doctrine of Discovery is still practiced in the thinking of our contemporary Indigenous leaders, and this mentality literally interfered with my right to lead my people as an elected official.  Many of our leaders are not in harms-way, yet they cannot begin to make a power shift away from a European Faith Based power system. They are afraid to do so. 

Furthermore, looking at the OBJECTIVES and the list of proposed “Thematic Working Groups” being featured at the V Continental Summit, I support re-introducing the goals that were discussed at the Dismantling the Doctrine of Discovery International Conference because the goals have overlapping interest and that they can be strengthened and/or further articulated.  The overarching goals included: “creating a comprehensive curriculum to reshape how the history of colonization is taught, as well as creating generative conversations within and across disciplines (law, environmental conservation, art, community development, and many others).  We hope that the these discussions will focus on interventions that vary in scope from the local, regional, and continental, to the global, transcending borders and building on our experiences to empower ourselves to envision a future in which the Doctrine of Discovery is challenged, denounced and ultimately dismantled." 


So I leave you with these few thoughts because already I saw that high level work groups are anticipated.  I am encouraged by it.  We will prevail by working together in some way, whether it is to combat prejudice and stereotypes, protection of our water, air, soil, plants and animals, and protecting sacred sites, to name a few.  

On behalf of my extended family (a working group of three clans - the eagle, tobacco, and badger) whom are cultural bearers and stand for the traditional grassroots leaders and are looking beyond our community into worldly Indigenous issues, gave me permission to send this message.  I wish you all a successful meeting in Colombia and safe travel.


Sincerely,

  /s/

Edward Wemytewa,  Councilman

A:shiwi Nation




Wednesday, November 20, 2013

Comunicado a la Santa Sede, El Vaticano: DESMANTELANDO la Doctrina de Descubrimiento


V Cumbre Continental de los Pueblos Indígenas del Abya Yala

Noviembre 15, 2013



La María Piendamó, Cauca [Colombia] 

Comunicado a la Santa Sede, El Vaticano 
Roma, Italia

Su Santidad Papa Francisco,


En Asamblea Plenaria de la V Cumbre Continental de los Pueblos y Nacionalidades Indígenas del Abya Yala, reunidos en La María Piendamó, Cauca y en el Espíritu de la Libre Determinación de los Pueblos Indígenas, igual a todos otros pueblos, hacemos un llamado a su oficina para que aclare y se comprometa a rectificar los asuntos que aquí presentamos:

Con la intención de avanzar deliberadamente hacia el fin de la era del colonialismo y hacia la descolonización por lo largo y ancho de todo nuestro continente de Abya Yala, y con el Mandato de la Liberación Espiritual de emerger del esquema de dominación que ha sido normalizado y justificado por la Doctrina del Descubrimiento de la Cristiandad hace más de quinientos veinte años en este continente de Abya Yala [América]:

Los Pueblos y Naciones Indígenas de Abya Yala aquí recordamos a su oficina:

En La 11ª Sesión del Foro Permanente de las Naciones Unidas para las Cuestiones Indígenas se presentó la siguiente recomendación:

4 . El Foro Permanente recuerda el cuarto párrafo del preámbulo de la Declaración de las Naciones Unidas sobre los derechos de los pueblos indígenas en que se afirma que todas las doctrinas, políticas y prácticas basadas en la superioridad de determinados pueblos o individuos o que la propugnan aduciendo razones de origen nacional o diferencias raciales, religiosas, étnicas o culturales son racistas, científicamente falsas, jurídicamente inválidas, moralmente condenables y socialmente injustas. En todo el mundo, los colonizadores han aducido justificaciones jurídicas y políticas para desposeer a los pueblos indígenas de sus tierras, privarlos de derechos y derogar sus derechos, como, por ejemplo, la doctrina del descubrimiento, la doctrina de la dominación, la “conquista”, la doctrina de terra nullius o la doctrina real. Si bien estas doctrinas nefandas se favorecieron para justificar la adquisición de las tierras y los territorios de los pueblos indígenas, implícito en ellas había postulados más amplios que se tomaron como base para afirmar la autoridad y el control sobre las vidas de los pueblos indígenas y sus tierras, territorios y recursos. Los colonizadores consideraron a los pueblos indígenas “salvajes”, “bárbaros”, “poco evolucionados”, “inferiores e incivilizados” y usaron estos conceptos para someter, dominar y explotar a los pueblos indígenas y sus tierras, territorios y recursos. 

El Foro Permanente exhorta a los Estados a que repudien esas doctrinas como base para denegar los derechos humanos de los pueblos indígenas. 

En consecuencia y en cumplimiento de la recomendación anterior del Foro Permanente para las Cuestiones Indígenas, se reunió en el territorio O’otham [Arizona], en abril 2013 , una conferencia internacional organizada en el marco del tema del Desmantelamiento de la Doctrina delDescubrimiento.  Al presentar y ratificar la Declaración Abya Yala que fue emitida por esta conferencia Indígena continental, la Plenaria de la V Cumbre Continental Indígena del Abya Yala ha tomado en cuenta el asunto en su agenda y preocupados por los comentarios recién hechos acerca de la disputa entre Argentina y la Gran Bretaña sobre la jurisdicción territorial de las Islas Malvinas/Islas Falkland;

En el discurso de la revisión de las historias y de los conflictos y las violaciones criminales actuales de los Derechos Humanos de nuestros Pueblos Indígenas que se encuentran en la base de los pogromos que permite la persecución política de nuestros Pueblos Originarios disfrazada de "sistemas legales" bajo el manto de la Doctrina del Descubrimiento;

Con la intención de abordar las cuestiones de violaciones de Derechos Humanos, en particular el derecho a la Libre Determinación de los Pueblos Indígenas, con el fin de instituir  medidas correctivas colectivas en el rechazo de la Doctrina del Descubrimiento, ya que la Doctrina continúa sirviendo como una manta de camuflaje para la patología y para la colonización que deforma y viola el espíritu y el bienestar de nuestra Humanidad Común;

Nuestra posición es que el Estado del Vaticano, la Santa Sede y Su Santidad el Papa Francisco deberán tomar las medidas adecuadas y llevar adelante un proceso de responsabilidad internacional por el papel que la Iglesia Católica ha jugado en el origen y autoría intelectual de las violaciones de Derechos Humanos que siguen siendo normalizadas por la Doctrina del Descubrimiento.  Exhortamos Su Santidad a hacer comentario público en repudiación de la Doctrina del Descubrimiento y en clarificación de las contradicciones aquí documentadas.

Asamblea Plenaria de la V Cumbre Continental
de los
Pueblos y Nacionalidades Indígenas del Abya Yala
Secretaría del Consejo Continental de las Naciones y Pueblos Indígenas del Abya Yala 

Anexo de Documentos