Onondaga / Haudenosaunee Motion Challenges US Colonialism in OAS Human Rights Case
Motion presses property issue and challenges 'Christian Discovery' doctrine
IN THIS POST: Colonialism Is Not An Event: It Is a Continuing Structure of Domination : Understanding the property issue in the Onondaga case; appreciating the Motion to Reconsider the IACHR Admissibility Ruling
THE CASE:
As I explained in August, the OAS Inter-American Commission on Human Rights (IACHR) upheld the Onondaga Nation and Haudenosaunee Confederation’s Petition against the United States alleging wrongful appropriation of their land. The Petition is now a formal Case.
The Petition charged the US with violating three Articles of the American Declaration on the Rights and Duties of Man:
Article XXIII - Right to Property
Article II - Right to Equality Before the Law
Article XVIII — Right to Fair Trial and Judicial Protection
The Commission accepted the second and third charges as a formal Case, but declined to accept the charge of a property violation.
The reason given was jurisdictional — Ratione Temporis — “By reason of time” — meaning that the alleged illegal takings between 1788 and 1822 of Onondaga land ended before the United States endorsement of the OAS Charter in 1951, and therefore the Commission had no jurisdiction to review those takings.
The US had argued this principle in its opposition to the Onondaga / Haudenosaunee Petition.
Joe Heath, General Counsel for the Onondaga Nation, said:
As positive as the May 2023 Admissibility Decision was, it contained one error — in that it ruled that the Nation’s claim based on the violation of the internationally recognized ‘right to property’ could not proceed. This denial was wrong and in violation of international law and precedent.
THE NEW MOTION
On September 14, 2023, the Onondaga / Haudenosaunee filed a Motion For Reconsideration Of Admissibility Ruling On The Violation Of The Right To Property.
The Motion asks the IACHR to look again at the denial of the property claim. It reminds the Commission of its own precedent — that when the harms from a prior wrong are on-going, the harms are considered to be “continuing violations”.
Indeed, the Commission stated in its ruling:
States may be liable for violations that originated prior to a state's ratification of a treaty or other international instrument but continue thereafter.
It is not clear why the Commission didn’t follow this precedent.
The only explanation I can find is that the original Onondaga / Haudenosaunee Petition did not specifically address the ‘continuing’ nature of the alleged property violation.
It used present-tense language in describing the harms caused by the property takings, but it did not elaborate or emphasize these as “continuing violations”:
The victims in this case are the Onondaga Nation and the Onondaga people, whose land, cultural life, spiritual life and physical well-being have been and are being adversely affected by the acts and omissions complained of in this Petition.
The Motion for Reconsideration significantly ramps up the argument. It includes two main sections on the ‘continuing’ nature of the property violations. The summary of the argument is detailed and explicit:
The ability of the Onondaga Nation and the Haudenosaunee Confederacy to exercise sovereignty over their territory and lands;
their ability to exercise their self-determination and governance over their territory, lands, and resources;
their ability to benefit from their lands and resources economically, culturally, physically (health), and spiritually;
the continuing occupation of their lands and territory by the United States and non-Onondaga;
the continuing toxic contamination of their lands, territory, environment - and bodies - by or under the authorization of the United States;
and their ability to be free of racism and ethnic discrimination and colonial domination and rule,
are all continuing violations and harms.
Moreover, the Motion further strengthens the argument about ‘continuing violations’ by adding an extensive argument in multiple sections under the heading:
Colonialism, in All of its Forms and Manifestations, is a Continuing and Unlawful Violation of Collective Human Rights
These sections amount to more than half the entire Motion.
The attack on colonialism opens with an indictment of:
…the colonial relationship and domination of the United States over the Onondaga Nation and the Haudenosaunee Confederacy expressed in the domestic law of the United States, known as "federal Indian (colonial) law".
The argument echoes the critique in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples.
The Motion has some memorable lines and phrases describing the “colonial doctrine of federal Indian law”:
The Doctrine of Discovery is “The Doctrine of Imperial Theft”.
“The trust relationship is effectively a means by which the colonial power maintains its continuing dominance and control over Native nations and people and their lands, natural resources, and other assets.”
“Plenary power” is the US claim of “authority to violate at will and with impunity treaties with indigenous nations, to extinguish indigenous territories, and even to terminate the legal identities of indigenous nations and peoples.”
The Motion asserts:
It was under this assumed plenary power over the Onondaga Nation and the [Haudenosaunee] Confederacy that the United States ignored its treaty obligations, designed and limited the only legal and insufficient remedies available to the Petitioners, and licensed and facilitated the toxic contamination of the Onondaga Nation's ancestral lands.
The Motion offers an overarching conceptualization of this ongoing history in the phrase:
Colonialism Is Not An Event: It Is a Continuing Structure of Domination
The argument points out that:
Colonialism "in all its forms and manifestations" has been condemned by the members of the United Nations for over 70 years.
The UN Committee on the Elimination of Racial Discrimination (UNCERD) affirmed that United States law regarding Indigenous land rights "[does] not comply with contemporary international human rights norms, principles and standards that govern the determination of indigenous property interests”.
Over the past 60+ years, the United States is the only State out of some 180 voting UN member States which has voted against all of the hundreds of decolonization instruments adopted by the UN General Assembly.
The Motion closes with a discussion of the spiritual aspects of the case:
The American Declaration on the Rights and Duties of Man proclaims "spiritual development" as “the supreme end of human existence and the highest expression thereof” and says that “it is the duty of man to serve that end with all of his strength and resources.”
The IACHR has recognized that for indigenous communities the relation with the land is not merely a question of possession and production but has a material and spiritual element that must be fully enjoyed to preserve their cultural legacy and pass it on to future generations.
This union of the fundamental rights to the free exercise of religion (spirituality), to property, to territorial integrity, to health, and to culture, freedom, and the enjoyment of life, is the essence of the Onondaga and Haudenosaunee right to property.
Andrew B. Reid, the new lawyer brought into the case by General Counsel Joe Heath, has made a crucial and critical contribution to the Onondaga / Haudenosaunee case.