Promoting the international legal and political status of the Alaskan indigenous peoples…Interview with Ronald Barnes, Permanent Representative of the Alaska Indigenous Tribes before the UN Human Rights Council

Ambassador Ronald Barnes was first appointed in 1994 by the Elders of Tununak, Alaska, as their representative before the United Nations with a clear mandate to promote the international legal and political status of the Alaskan indigenous peoples. The Indigenous Peoples and Nations Coalition was founded as a ’free political institution’ of the Elders and grassroots communities to promote their rights under international law.
In 1946 Alaska was placed on the list of Non-Self-governing Territories by virture of General Assembly Resolution 66 (I). By placing the Territories of Alaska on the list, which included other Territories such as Hawaii, Angola, Morocco and Indonesia, to name but a few examples, the General Assembly recognized the paramount interests of the Alaska natives and imposed on the United States specific obligations under Chapter XI and Article 73 of the UN Charter. Pursuant to Article 73, States with responsibilities over non-self-governing territories are to administer said territories as a « sacred trust » and must protect the native inhabitants against abuses, assist them on their way to self-government, and report to the United Nations thereon. Accordingly, the United States as Administering Power for the Territory of Alaska and its peoples, had specific obligations, which were elaborated in resolutions adopted by the General Assembly, in decolonization terms, referred to as « factors and principles », as a guide to determine whether or not the native peoples were effectively exercising their ’equal right and self-determination’ as stipulated in Article I of the UN Charter. Notwithstanding these paramount obligations of the United States, both Alaska and Hawaii were removed from the list of Non-Self-Governing Territories in 1959 under General Assembly resolution 1469 of 12 December 1959.
The factors and principles were to be examined by the Committee of Information, which today is known as the Decolonization Committee. Ambassador Barnes asserts that the factors and principles were not duly examined by the Decolonization Committee, and that, if an examination were to take place today, the General Assembly would inevitably discover that several flagrant violations had occurred. Indeed, in the case of other Territories, a violation of these obligations allowed for relisting the Territory.
What do the Indigenous Peoples of Alaska want today?
We, the Indigenous Peoples of Alaska want to exercise our right to self-determination. Several Tribes in Alaska have adopted resolutions recognizing that we have the inter-national right to self- determination. These doc-uments recognize that taxation without representation and consent of the governed are founding principles of the American Government. Without resolving our international legal and politcal status we will continue to have unresolved conflicts with the state of Alaska and the United States.
What are you doing to get recognition?
We have lodged diplomatic protests against the United States of America and the United Nations at the Commission on Human Rights and now at the Human Rights Council. We have appealed to the UN Human Rights Committee (HRC) and to the Committee on the Elimination of Racial Discrimination, with a degree of success. In the dialogue with the United States the HRC has called for the United States to reconcile with the International Covenant on Civil and Political rights the 1955 Tee-Hit-Ton v United States of America case (348 U:S: 272). This judgment basically « nationalized » us under the United States Federal Indian Law without our consent, using the concept of « aboriginal title » under their doctrines and principles of racial superiority and then determined that that land was for the settlement of the white race. The judgment applied the 1823 Johnson v. McIntosh precedent, which held that we had to give up our land and sovereignty by virture of the 1493 Papal Bull « Inter Caetera » of Pope Alexander VI. Yet, after World War II and pursuant to the UN Charter, Alaska had been listed as a Non-Self-Governing Territory. The United States violated, among others, General Assembly Resolution 644 (VII) which called for all Administering Powers to abrogate discriminatory laws and policies detrimental to rights of the Indigenous inhabitants of said territories.
During the examination of the US report in 2007, the Committee on the Elimination of Racial Discrimination noted that Alaska was listed under General Assembly resolution 66 (I) in 1946. It then posed an important question: What did the United States do to involve the Indigenous Peoples of both Alaska and Hawaii in a process toward self-government? CERD further noted that the United States had consistently denied that Tsarist Russia had acquired governing authority in Alaska. Thus the United States had not acquired title over Alaska by virture of its 19th century « purchase » from Tsarist Russia. Nemo dat quod non habet. Alas, these questions were not addressed by the US Delegation and were left hanging.
How did the debate before the UN Human Rights Committee go in 2006 when the 2nd and 3rd reports of the United States were examined?
The Human Rights Committee issued important Concluding Observations expressing: « concern that no action has been taken by the State party to address [the Committee’s] previous recommendation relating to the extinguishment of aboriginal and indigenous rights. The Committee, while noting that the guarantees provided by the Fifth amendment apply to the taking of land in situations where treaties concluded between the federal government and Indian tribes apply, is concerned that in other situations, in particular where land was assigned by creating a reservation or is held by reason of long possession and use, tribal property rights can be extinguished on the basis of the plenary authority of Congress for conducting Indian affairs without due process and fair compensation. The Committee is also concerned that the concept of permanent trusteeship over the Indian and Alaska native tribes and their land as well as the actual exercise of this trusteeship in managing the so called Individual Indian Money (IIM) accounts may infringe the full enjoyment of their rights under the Covenant. Finally, the Committee regrets that it has not received sufficient information on the consequences on the situation of Indigenous Native Hawaiians of Public Law 103-150 apologizing to the Native Hawaiians Peoples for the illegal overthrow of the Kingdom of Hawaii, which resulted in the suppression of the inherent sovereignty of the Hawaiian people. (articles 1, 26 and 27 in conjunction with Article 2, paragraph 3 of the Covenant).
« The State party should review its policy towards indigenous peoples as regards the extinguishment of aboriginal rights on the basis of the plenary power of Congress regarding Indian affairs and grant them the same degree of judicial protection that is available to the non- indigenous population. It should take further steps in order to secure the rights of all indigenous peoples under articles 1 and 27 of the Covenant to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture. »
Are you satisfied with the Human Rights Committee’s attention to the problems of the indigenous in Alaska?
The Committee did take our « shadow report » seriously and much discussion ensued in the plenary. The problem is elsewhere: implementation. The United States equivocated the issues before the Committee as it had manipulated the Alaska case before the General Assembly in 1959, when it had Alaska taken out of the reporting procedures envisaged under article 73 of the UN Charter. Before that the US had engineered the so-called referendum of 1958 which had subjected the Indigenous Nations of Alaska to intimidation and fines in connection with their inability to read, write or speak English. By contrast, however, the US military personnel temporarily stationed in Alaska, white settlers and newcomers were allowed to vote to approve the annexation of Alaska. This was contrary to international practice with regard to self-determination — e.g. in the case of the Advisory Opinion of the ICJ on Western Sahara. In the light of the Committee’s concluding observations, the question of Alaska must be considered to be open.
Has there been any follow-up?
Unfortunately nothing is moving with the Human Rights Committee, but they do have a Special Rapporteur for Follow Up of Concluding Observations and Recom-mendations. We are pursuing other procedures and drawing ngo and civil society attention to the unanswered questions posed by the Committee on the Elimination of Racial Discrimination.
Are you going to bring the matter before the Human Rights Council?
Certainly. For example, the U.S. can be called on in 2010 in the new UPR procedure. Although we have not seen any state with similar situations questioned or appropriately dealt with. This seems to be one of the weaknesses of the UPR procedure.
What do you realistically expect?
We need to alert and appeal to the international community to examine our case so that the injustices committed to the First Nations of Alaska can be remedied. The denial of the right to self- determination based on racial discrimination is already recognized as a gross violation of international jus cogens. Perhaps some pressure could be brought to bear on the United States so that our Territory and natural resources are returned to us. The problem remains one of information. No one knows about us, and very few people care. We will continue to promote our case until it is addressed and remedied. We cannot give up, we never will.
The interview was conducted at the Palais des Nations by Professor Alfred de Zayas