INDIGENOUS PEOPLES PETITION CERD
From 3 to 28 August the United Nations Committee on the Elimination of Racial Discrimination held a historically important session in Geneva. Among its agenda was the examination of a petition by the Indigenous Peoples and Nations Coalition (IPNC) and the Koani Foundation (Hawaii). CERD is an expert body of 18 members from all regions of the world, and its main function is to monitor State compliance with the International Convention on the Elimination of All Forms of Racial Discrimination.
Pursuant to article 15 of the Convention, CERD can be seized of petitions submitted by indigenous peoples pursuant to a procedure based on General Assembly Resolution 1514 (XV) of 14 December 1960 on the Granting of Independence of Colonial Countries and Peoples.
The IPNC petition contends that the prevailing situation concerning the right of self-determination of indigenous peoples in Alaska and Hawaii does not correspond to the UN objectives, standards and procedures laid down in the UN Charter and in relevant General Assembly resolutions. In this connection IPNC and Koani submitted to the 75th session of CERD (and earlier to the Human Rights Committee) its own "Shadow Reports", documenting the grave irregularities that have characterized the United States handling of indigenous matters in Alaska and Hawaii. In particular, the petition requested that CERD forward the matter to the competent Committee of the General Assembly for further examination. Such transmittal to the "Committee of 24" would be well within the competence of CERD in the light of the 1970 procedure envisaged in CERD’s Statement of Responsibilities under Article 15, which stipulates that if the Committee receives petitions, it shall act in a way so as not to deprive a petitioner — or the competent bodies of the United Nations - of the opportunity to have petitions duly considered.
The IPNC petition was submitted as part of the follow-up to the examination of the United States periodic report to CERD, which in principle is submitted every 5 years and outlines the measures taken by the US to implement its obligations under CERD. During the dialogue before the Committee IPNC recalled that Alaska and Hawaii had been placed on the list of non-self-governing territories pursuant to in General Assembly resolution 66 (I) in 1946. It was further recalled that the Kingdom of Hawaii had existed as a fully independent and sovereign State under international law, with diplomatic relations and treaties with the United States and other countries. With regard to the U.S. claim to sovereignty over Alaska by virtue of purchase from the Russian Empire, it was pointed out that the United States had consistently denied that Russia had ever acquired governing authority over the Alaska. Thus, if the Russia had no sovereignty, the U.S. could not acquire it by virtue of purchase. The Committee questioned the US delegation on the status of the indigenous peoples during the referenda leading to the removal of Alaska and Hawaii from the list under General Assembly resolution 1469 of 12 December 1959. The United States replied that Alaska and Hawaii are the 49th and 50th state members of the Union and that the self-determination issue had been settled. The indigenous populations, however, emphatically reject the response given by the then Ambassador Warren W. Tichenor, Permanent Representative of the Mission of the United States of America during the dialogue with CERD.
The Shadow Reports document historical violations of the UN Charter and international law based on UN principles and General Assembly resolutions. Reference is made to the judgment of the United States Supreme Court in the1955 Tee-Hit-Ton v. United States of America case, which held that the land in Alaska was for the settlement of the white race, notwithstanding General Assembly resolution 644 of 1952 that called on all administering Powers to abrogate discriminatory legislation and policy in non-self-governing territories. This judgment relied on the earlier precedent of the 1823 Johnson v. McIntosh case, which held that the "savages" had to cede their territory and accept the superior genius of the European civilization. For many years the Indigenous Peoples of Alaska were subjected to fines and imprisonment if they could not pass a test to read, write or speak in English. This violated the mandate of the administering Power, in particular the obligation to inform the peoples of the territory in their own language. The United States military was listed in UN reports as the de jure population of Alaska and given the right to vote in the referenda, as were American citizens; this procedure contravenes international practice concerning other non-self-governing territories. Reference was made to the Concluding Observation of the Human Rights Committee calling for the United States to address the open questions concerning the self-determination of the indigenous peoples of Alaska.
The Koani Foundation submitted Public Law 103-150, the "Apology Bill" of 1993, where Bill Clinton, the then President of the United States of America and the Congress formally apologized for the illegal overthrow of the Hawaiian Kingdom in 1893. Documents were presented concerning the call by United States President Grover Cleveland to return the Hawaiian Kingdom to its de jure government. Koani also referred to the Concluding Observations of the Human Rights Committee that called for additional information on the illegal overthrow of the Hawaiian Kingdom.
The Committee agreed to meet informally with the representatives of the indigenous people and appointed a Rapporteur. Representing the delegation from Alaska were Ambassador Ronald Barnes, Mary Ann Mills and Olga Malutin. Mr. Leon K Siu represented the Kingdom of Hawaii. Professor Alfred de Zayas of the Geneva School of Diplomacy and International Relations and former Secretary of the UN Human Rights Committee was of counsel and provided pertinent legal advice on the issue of self-determination referenda, the principle of good faith and the doctrine of estoppel.
The Members of the Committee argued that their hands were tied, because Alaska and Hawaii had been removed from the list by virtue of a resolution of the General Assembly in 1959, and that ratione temporis Article 15 no longer applied. The representatives of the indigenous peoples noted, however, that there was an issue of a "continuing violation" of the principle of self-determination and a situation of an ill-obtained GA resolution, which was based on deliberate misinformation and the manipulation of referenda in violation of the rights of the indigenous. Both Alaska and Hawaii were administered through puppet institutions created by the administering Power. Most pertinently, it was recalled that General Assembly resolutions are not immutable and that certain Resolutions, including the "Zionism is Racism" resolution, have been lifted or modified by subsequent resolution. The Delegations of Alaska and Hawaii stated they would continue to pursue their claims.
In the final day of the plenary session, the Rapporteur stated that he would reflect the discussion in the Committee’s report, indicating that this matter belongs with the appropriate body of the United Nations. However, the petition has not been officially transmitted to the General Assembly, as the IPNC and Koani continue to demand.