Law suit over Treaty Terms

The implications over treaty terms and the boundaries of indigenous nations' lands is not something that is a relic from the past. It is something that continues to have a great deal of relevance in the present day, as this article about a law suit on the 1855 treaty between the US federal government and the Little Traverse Bay Band of Odowa Indians points out.  At issue includes jurisdiction over legal matters -- whether the jurisdiction is in tribal court or in the state legal system. The article notes "child welfare, grave protection, income tax laws, and jurisdiction within the reservation" are raised as areas of contention in the law suit. 

The more things change...

There is another new blog on indigenous peoples that started at the end of December 2011, just like TK Totem. Now as TK Totem is trying to get the word out about itself, and let people know it’s here, some people might think it is a bit mad to highlight another indigenous rights blog. I myself do not see blogs in competition—and at any rate, I would be remiss not to shout out about the blog at www.LastRealIndians.com.

It is filled with dynamic posts, fresh points of view, and well-written perspectives. One post in particular caught my eye, and that was the one about “Vine and the Divine.” The blogger, Denny Gayton, discusses the worth of the work of the late Vine Deloria, Jr. There is very little I can add to what has been written; only to say that if you are not familiar with Vine Deloria, Jr and his work, and if you have an interest in indigenous rights, you cannot afford to overlook his work.

I have a well-worn copy of “Behind the Trail of Broken Treaties: An Indian Declaration of Independence” ( at this link here) on my desk. The concluding chapter discusses the importance of reinstating a treaty process between the indigenous peoples in the United States and the United States government. His arguments for the need for this resonate with the arguments being made by the Corroboree for Sovereignty group in Australia ( the subject of this blog post).

“Behind the Trail of Broken Treaties” was written in 1974. A great deal has changed since then—but a number of issues still persist as well—as shown by the parallels that can be drawn from Vine Deloria’s arguments and the current position of the Corroboree for Sovereignty.

Written by Sarah Sargent.

The Corroboree for Sovereignty, the Treaty of Waitangi and Unresolved Questions in International Law

There has been a great deal in the news about Australia Day—26 January—and the protests by the Aboriginal Peoples. In the swirl of these events, other long-standing protests have been overlooked. These other groups of protestors raise claims about sovereignty, the need for treaties, and for re-examining the relationship between the Aboriginals and the government. It is true as well that there is a proposed change to the Australian Constitution, which has been discussed in the blog post by Lucas, but it does not address the deep-seated and persistent issues that are raised by these other protests.

This article here from the Canberra Times notes two other protests, the Corroboree for Sovereignty and a 40 year long tent embassy:

“The three-day Corroboree for Sovereignty, which will run until tomorrow, is being timed to coincide with the 40th anniversary of the Aboriginal tent embassy's establishment in Canberra.”

More information on the Tent Embassy and the Corroboree for Sovereignty can be found at this link. One of the issues put forward is the demand for a treaty between the Australian government and the Aboriginal Peoples. Australia stands in contrast to its near-ish neighbour, New Zealand, in respect of how the relationship between the indigenous peoples and European colonisers was shaped. Australia saw the development of the doctrine of terra nullius, translating literally to “empty land.” In other words, the land was treated as if no one was there—at least no one that the colonisers wanted to or felt obliged to acknowledge. New Zealand, on the other hand, has the Treaty of Waitangi (here is a link to information on the treaty) that governs the relationships between the indigenous peoples of New Zealand and the government. The Treaty is recognised and in effect today. In 1975, an Act was passed that established the Waitangi Tribunal ( link to legislation here).

As explained on the Tribunal’s website, http://www.waitangi-tribunal.govt.nz/, “The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to acts or omissions of the Crown that breach the promises made in the Treaty of Waitangi.” In respect of claims made to the Tribunal, it “ has to decide whether, on the balance of probabilities, that claim is well founded. Where the Tribunal finds that such is the case, it may recommend to the Crown means by which the Crown can compensate the claimants, remove the prejudice, or prevent similar prejudice happening to others in the future.”

This is an important mechanism for the recognition and enforcement of Treaty rights—something that is unique in the landscape of treaty rights, sovereignty claims and relationships between indigenous peoples and governments. The UN Declaration on the Rights of Indigenous Peoples provides for the recognition of treaties in Article 37,

“Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive
arrangements.
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”

But the article and the Declaration are silent on how and where these treaties are to be enforced. Are these a matter of international or domestic jurisdiction? And where are indigenous peoples to go with claims of sovereignty—such as those raised by the Corroboree for Sovereignty—and demands for treaties where none currently exist? If the state is unwilling or its responses deemed inadequate, are there grounds for some sort of international claim? And if so, on what basis and where? These and many other questions rise to the fore when considering the claims of the Corroboree for Sovereignty, and the contrasts with treaty arrangements in New Zealand. Whilst many gains have been made in international law for the recognition of the rights of indigenous peoples, many other questions remain unresolved and unanswered.

Written by Sarah Sargent.