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)

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

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

Clic Aqui para descargar documento PDF

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

• 2010 Estudio Preliminar de las Naciones Unidas sobre el Impacto de la Doctrina delDescubrimiento.

• Declaración de la ONU de 2007 sobre los Derechos de los Pueblos Indígenas

• Bula Papal Inter Caetera de 1493

• El Requerimiento de 1513

• ANASAZI: Primavera 1984 Carta al Papa Juan Pablo II

• 30 demayo 1984 Respuesta: Secretaría de Estado del Vaticano

• 14 demarzo 2013 Artículo: "usurpada" - El cardenal Bergoglio y el 30 ºaniversario de la guerra por las Islas Malvinas/Falkland entre Gran Bretaña yArgentina .

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Proclamacion Continental Abya Yala

Mayo 2006 

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 YouTube:
Aucan Huilcaman
DESMANTLANDO
La Doctrina de Descubrimiento

Statemement by Nikki Tulley, Dineh - Navajo Nation

Abya Yala Youth Summit

Cauca [Colombia]

Nikki Tulley, Dineh - Navajo Nation

The tribe I come from has 300,000 members.  This is a large number.  Where we are located is in three states:  Arizona, New Mexico, and Utah.  But I am only one representative of one tribe of approximately five hundred tribes located in the United States.  So what I want to share with you today as youth is that what I have been taught is that I am a part of the seventh generation.   

This seventh generation was prophesied from our ancestors long ago. Why is this important?  Because the seventh generation has been stated that we are the future young leaders that will come to help our people.  So I came here to Colombia as a representative of my father who could not be here.  This is a great privilege for me because it taught me that I am taking all the teachings of my ancestors, my parents, grandparents and aunts, and uncles.  And all these teachings of my family are standing here before you this day although they themselves could not be here. 

So what are we doing as youth where I come from?  One thing is that we are revitalizing our culture and language.  Because if we do not know where we come from we cannot know where we are going.  One main thing we have been working on is working with our elders.  I recently have earned my Bachelor of Science Degree in Environmental Science with hopes that somehow I can help my Indigenous Nation and others as well.  I desire to help because as Indigenous people the environment is important for us.  Each day our lives and our territories are being exploited.  For this reason I choose to study Environmental Science.  A number of youth from my tribe are taking the path of standing up for our Mother Earth. 

When we protect Mother Earth as Indigenous people we are able to protect the place our teachings come from.  When we protect our homeland we protect the future generations yet to come.  In this way we are able to protect our way of life.  Speaking of maintaining our lives there is something I would like to share with you.  One main reason why we traveled here to Colombia for the V Cumbre was to share with you the Abya Yala Declaration:  Dismantling the Doctrine of Discovery.   

To discuss the destructive, deadly and genocidal effects of the Doctrine of Discovery.  And in this way we as Indigenous people around the world, Dismantling the Doctrine of Discovery to help maintain our lives as they have been before with our ancestors and how we desire them to be now and in generations to come. 

So we have come here from the North of Abya Yala [USA, Canada] to ask the relatives in Central and South Abya Yala [Central and South America] to affirm our determination to form an Indigenous Peoples’ Tribunal.  And to move forward with stronger support from all of Abya Yala to Dismantle the Doctrine of Discovery. 

This is what I wanted to share with you today.  It has been an honor for me to talk to you all and see this beautiful site of youth and realize that I and the Indigenous youth to the North of Abya Yala are not alone and that we have Indigenous relatives here in the South but also know that there are Indigenous youth throughout the world.  Maybe our Indigenous populations in the world are smaller when compared to others but we are strong.  And with this strength we can move forward with great hope and prepare a strong future for generations yet to some.    

Communiqué to the Vatican: DISMANTLING the Doctrine of Discovery

V Continental Summit of Indigenous Nations and Pueblos of Abya Yala

La Maria Piendamo, Cauca [Colombia]

November 15, 2013

Communiqué to the Holy See, Vatican State
Rome, Italy

His Holiness, Pope Francis

In Plenary Assembly at the V Continental Summit of Indigenous Pueblos and Nations of Abya Yala gathered at La María Piendamó, Cauca [Colombia], and in the Spirit of Self Determination of Indigenous Peoples, equal to all other peoples, we call upon your office to clarify and commit to rectify the issues we now present:

With the intention of moving deliberately towards the end of the age of colonialism and into decolonization across the length and breadth of our continent of Abya Yala, and in Mandate of Spiritual Liberation from the schema of domination which has been normalized and justified by the Doctrine of Discovery of Christendom for over five hundred and twenty years in this continent of Abya Yala [the Americas],

We here and now remind your office:

The 11^th Session of the United Nations Permanent Forum on Indigenous Issues made the following recommendation:

4.            The Permanent Forum recalls the fourth preambular paragraph of the United Nations Declaration on the Rights of Indigenous Peoples, which affirms that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust. Legal and political justification for the dispossession of indigenous peoples from their lands, their disenfranchisement and the abrogation of their rights such as the doctrine of discovery, the doctrine of domination, “conquest”, “discovery”, terra nullius or the Regalian doctrine were adopted by colonizers throughout the world. While these nefarious doctrines were promoted as the authority for the acquisition of the lands and territories of indigenous peoples, there were broader assumptions implicit in the doctrines, which became the basis for the assertion of authority and control over the lives of indigenous peoples and their lands, territories and resources. Indigenous peoples were constructed as “savages”, “barbarians”, “backward” and “inferior and uncivilized” by the colonizers who used such constructs to subjugate, dominate and exploit indigenous peoples and their lands, territories and resources. 

The Permanent Forum calls upon States to repudiate such doctrines as the basis for denying indigenous peoples’ human rights. 

In consequence and in implementation of the above recommendation from the UN Permanent Forum on Indigenous Issues, an International Conference was convened in O’otham Territory [Arizona] in April of 2013, organized under the theme of DISMANTLING the Doctrine of Discovery.  Upon presentation and ratification of the Abya Yala Declaration which was emitted from this continental indigenous conference, the Plenary of the V Continental Summit of Indigenous Nations and Pueblos of Abya Yala has addressed the issue in our agenda. 

Therefore:

In the course of reviewing the history of the issues of conflict and ongoing criminal violations of our Human Rights as Indigenous Peoples, which lie at the base of continuing pogroms of political persecution disguised as “legal” policies under the mantle of the Doctrine of Discovery;

Concerned regarding public comments made regarding the dispute over territorial jurisdiction over the Islas Malvinas/Falkland Islands between Argentina and Great Britain;

With the intention of addressing the systematic violation of Human Rights of the Indigenous Peoples of Abya Yala, in particular the Right of Self Determination of Indigenous Peoples, and with the goal of instituting collective corrective measures in repudiation of the Doctrine of Discovery which continues to serve as a mantel of camouflage for the pathology and colonization that deforms and distorts the spirit and well being of our common humanity;

Our position is that the Vatican State, the Holy See and Your Holiness Pope Francis must take adequate measures and advance in the process of international responsibility for the role that the Catholic Church has played in the origin and as intellectual author of the criminal violations of Human Rights which continue to be normalized by the Doctrine of Discovery.

We exhort Your Holiness to make public comment in repudiation of the Doctrine of Discovery and in clarification of the contradictions here documented.

Plenary Assembly of V Continental Summit of Indigenous Nations and Pueblos of Abya Yala

Secretariat of the Continental Council of Indigenous Nations and Pueblos of Abya Yala

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 Annex:
2010 UNPFII Preliminary Study on the Impact of the Doctrine of Discovery
2007 UN Declaration on the Rights of Indigenous Peoples 
1493 Papal Bull Inter Caetera  
1513 El Requierimiento
1984 ANASAZI Letter to Pope John Paul II 
1984 Letter of Response : Vatican Secretary of State
2013 Catholic Herald: "Usurped" Malvinas-Falkland Islands

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Permanent Forum on Indigenous Issues

Fifth Period of Sessions  May 15- 26, 2006

United Nations   NY, NY

Continental Proclamation Abya Yala