by Ozzie Thomas
The First Perspective
WASHINGTON, DC-A new study published in the Annual Survey of International & Comparative Law recommends the United Nations allow Iroquois, Cherokee, Navajo, Seminole and other Indian Tribes membership into the United Nations. It suggests "agreements whereby the larger Native American Indian Tribes should have the opportunity to be seated in the United Nations, while the smaller ones could join together, if they wished, in confederations, which could be seated in the world organization."
The study in the just-released spring issue of the Annual Survey recommends that President Clinton should name a commission "to conduct a serious public study of the feasibility of restoring Indian Nationhood within practical boundaries." Clinton "should appoint Indians and non-Indians, lawyers, and non-lawyers, lawmakers, and citizens, historians and futurists... people of diverse philosophies and faiths who share a commitment to human rights an understanding of international affairs, and an open-minded willingness to seek practical compromise."
According to the study, some 166,000 Navajos, 43,000 Cherokees and other Indians own more than 96 million acres of land in the United States. Present members of the United Nations include many small countries such as Liechtenstein, with 27,000 residents on 62 square miles, and San Marino having 23,000 on 23 square miles.
Comparing the Indian Nationhood proposal to the formation of the state of Israel in 1948, the author, Anthony P.X. Bothwell, wrote, "If the survivors of the Holocaust, in which six million perished, could be allowed to return to their homeland and declare their independence, this author recommends that a similar procedure be allowed for the descendants of those who survived the Holocaust."
The Native American Indian population of the area now occupied by the 50 states of the Union was " almost exterminated," declining from as many as 15 million in 1492 to only about 200,000 in 1920, according to historical sources cited in the study. Today some 1.5 million Indians live on 300 reservation in 27 states.
"By the time European explorers began arriving along the Atlantic seaboard, Native American Nations were already well- established. In fact the Indian Nations possessed the requisite attributes of sovereign, independent states under international law as it then existed. It follows from this that the potentates, agents and exiles under Christian states did not have any right simply to take away that which belonged to the Native Americans," the study says, citing authorities ranging from founders of international law such as Francisco de Vitoria to American jurists such as Chief Justice John Marshall.
"Prior to the voyage of Christopher Columbus, Indian Nations were...sovereign states equal in status to any other states in the world under international law. But Indian sovereignty was ravaged in practice by papal bulls, colonial aggressions, and later by corrosive U.S. Supreme Court decisions and anti-Indian policies of the political branches of the federal government."
The study says the legal theories of discovery cannot be undone. "But if justice on this earth can be imagined, so can a practical way to achieve it. Provided that is, we are willing to reconcile ourselves to each other, and to historical truth."
The study argues that the traditional legal" precept that the Indians were incapable of understanding and holding any claim to land and other than mere occupancy was inequitable. It presented the under estimation of the level of culture and intellect of American Indian peoples, and a self-serving rationalization invented by whites who subscribed to the supremacist ideas prevalent among Europeans in the age of discovery."
It also cites historical evidence that the founding fathers got some of their ideas about government and freedom from the Indians. "The Framers of the Constitution had been profoundly inspired by their many Indian friends, but in the Jackson era federal troops and ragtag racists ran roughshod over the Indians, their land and the law. "In a tragic twist of irony, the author noted, "The vast frauds and atrocities were committed by avowed Christians in the name of religion that unequivocally condemned violence."
The Annual Survey recounted that "early decisions of the Supreme Court...lamented the injustices done to the Native American Indians and the legally questionable means by which the land rights were wrested from them Marshall's rationalizations were followed by generations of court decisions, executive orders, acts of Congress, army expeditions and mob acts of avarice and violence that left almost all Native Americans dead and their property in white hands."
"The taking of America," wrote Bothwell, "more than two billion acres from the Atlantic to the Pacific...involved the most extensive land fraud and the largest holocaust in world history."
Indians today have the "the worst poverty levels and the shortest life expectancies of any ethnic group in the United States; the toll of the American holocaust, thus continuing, must end.
In addition to proposing a presidential commission on restoring Indian Nationhood, the study calls for a State Department review of U.S.
obligations with respect to Indigenous Americans under human international rights law and redoubling efforts by domestic agencies "immediately to improve education and welfare standards for Indian people."
"The enlightened approach today is to not pretend that injustice did not occur, but rather to face up to the international obligations implicated by these crimes against humanity and to fashion remedies designed to seek justice insofar as possible, even if it be justice incomplete and long delayed."
The Annual Survey is published by Golden Gate University in San Fransisco Mr. Bothwell is working on a postdoctoral L.L.M. in international legal studies and is an adjunct professor of law at John F. Kennedy University of Law in Walnut Creek, California. He holds a M.S. in journalism from Boston University and also studied at Georgetown University School of Foreign Service. Bothwell is a lawyer and practices law in San Francisco.